Pennsylvania Overtime Rules
Pennsylvania employers must be prepared to comply with new overtime rules proposed by Governor Wolf on January 17. The minimum salary level that determines overtime eligibility will be increased and clarification provided for the duties test for executives, administrators and professionals. Details of the changes will be issued by the Pennsylvania Department of Labor and Industry in March.
Many employers will remember that President Obama attempted such a change at the federal level before leaving office. The Department of Labor issued a final ruling that doubled the salary threshold for exemption from overtime pay from $23,360 to $47,476. The ruling was met with opposition and law suits from business groups trying to block implementation of the new standard. The federal district court in Texas where the suit was filed issued a preliminary injunction that found the DOL regulation unlawful saying it was essentially a “de facto salary test” with not enough consideration for the duties test required by law. Despite an appeal from the DOL eventually the district court’s ruling became final and the overtime rules were never implemented.
Increases in Stages
Pennsylvania overtime regulations have seen no changes in more than 40 years. The proposed updates by Governor Wolf would be implemented in phases. Currently the standard for exemption from overtime pay is $23,660 annual salary or $455 per week. The first phase of the Governor’s plan would begin on January 1, 2020 and raise it to $31,720 annual salary or $610 per week. The next year on January 1, 2021 would see another increase to $39,832 annual salary or $766 per week. The final phase beginning January 1, 2022 would raise it again to $47,892 annual salary or $921 per week. The new regulations are also supposed to provide greater clarity as to the duties test for executive, administrative, and professional employees.
If implemented the plan could extend overtime eligibility to almost one in eight employees over the next four years. That translates to up to 460,000 more workers. Additionally, the proposal includes a stipulation that the salary threshold be updated automatically every three years to keep up with inflation.
The Review Process
It is important to note that while Governor Wolf has proposed these updates to Pennsylvania overtime regulations, only the Department of Labor and Industry can effect any changes in the law. After releasing a Notice of Proposed Rulemaking in March, there will be a required period (usually 30 days) for public comment and review before any final action is taken.
Employers are free to submit comments on the proposed changes which the Department of Labor and Industry is obligated to review and forward to both the Independent Regulatory Review Commission (IRRC)and the legislative standing committee. Comments become part of the public record and the Department must respond to them when it submits its final regulation. The IRRC evaluates the economic and financial impact of new regulations, ensures that they are reasonable and must approve them before they can take effect. IRRC board members are appointed and currently the board consists of three appointees made by Democrats and two who were appointed by Republicans.
Pennsylvania employers would be well advised to take stock of their employee classifications and salaries to assess how the proposed regulations could affect them going forward and to submit their comments and input to the Department of Labor and Industry.
The National Labor Relations Board (NLRB) is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions. Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to attempt to form, join, assist, be fairly represented by, or refuse to be a part of a union in their workplace. They may also engage in concerted activity to improve workplace conditions either individually or as part of a group. Employers who interfere with, restrain, coerce or discriminate against employees for exercising their Section 7 rights may be accused of unfair labor practices as outlined in Section 8 of the NLRA.
Lutheran Heritage Village–Livonia Case – Employer Rationale is Not Considered
In a recent decision, The Boeing Company, the NLRB put an end to the standard established over a decade ago in Lutheran Heritage Village–Livonia. In Lutheran Heritage, the NLRB held that an employer violates the NLRA when it maintains a workplace rule that “reasonably tends to chill” employees in their exercise of Section 7 rights. The Board stated that if a rule does not explicitly restrict activities protected by Section 7, then it will be deemed a violation of the NLRA if: employees would reasonably construe the language of the rule to prohibit Section 7 activity, the rule was promulgated in response to union activity or the rule was applied to restrict the exercise of Section 7 rights.
Based on the precedent set in Lutheran Heritage, many facially neutral workplace rules in subsequent cases were often found to violate employees’ Section 7 rights. Some of those rules included a policy banning profanity and abuse among co-workers and policies requiring employees to behave in a professional manner or to work harmoniously. Employers’ rationale for implementing the workplace rules was not taken into consideration; to prevail, employees simply had to show that the language of the rule could be construed as violating their right to engage in concerted activity.
The Boeing Company Case – A More Inclusive Standard is Introduced
In The Boeing Company, Boeing, a company that designs and manufactures military and commercial aircraft, instituted a blanket ban of camera-enabled devices on its premises to protect highly-sensitive information and to avoid security and safety risks. The Administrative Law Judge found that the policy reasonably tended to chill employees’ exercise of their Section 7 rights. However, the NLRB disagreed and in doing so, overturned the standard established in Lutheran Heritage.
The NLRB found the camera ban rule to be lawful and stated that employers’ interests in maintaining certain workplace rules should be taken into consideration, according to both the NLRA and Supreme Court precedent. The Board critiqued Lutheran Heritage, stating that it failed to take into account real life facts and circumstances that may necessitate the implementation of restrictive workplace rules. A more balanced standard is now in effect – one that allows for consideration of both employees’ interpretation of work policies and employers’ interest in instituting the policy. When evaluating a facially neutral workplace rule, the NLRB will now consider not only its potential impact on NLRA rights, but also any legitimate justifications for the rule.
Empowering Student Voices
School security has become a national hot topic in the wake of the largest school shooting incident in U.S. history that took place in Parkland, Florida on February 14. Students are some of the most vocal advocates for change concerning gun violence and school security; and rightly so, since they should expect to be able to learn in a safe environment. Civic engagement should be encouraged as long as it is carried out within guidelines from the school administration with the promise to ensure the safety of all students.
While all students have a First Amendment right to free speech, that right does not permit them to cause substantial disruption to the school environment or infringe upon the rights of other students. Additionally, threatening, lewd, or profane speech, and speech promoting illegal drug use have not been recognized in court as protected by the First Amendment for students within the school environment. When preserving the discipline and safety of students is at stake, the courts have acknowledged that it may be necessary to regulate speech outside of the school environment.
It is imperative that school leaders maintain open lines of communication with students and parents about how best to let student voices be heard. A common solution may be found for alternatives to walkouts or other protests that may disrupt the school environment and put students at risk. These may include planned student assemblies, allowing student clubs to become engaged in public policy issues, writing to elected leaders, and using the school newspaper as an outlet.
Staff members’ First Amendment rights are well defined by the U.S. Supreme Court. In Pickering v. Board of Education, the Court issued as a guideline the following three questions that can be used to determine if a staff member’s speech falls under the protection of the First Amendment:
- Was the statement regarding something of general public concern?
- Was the speech that of a private citizen or in the course of duty?
- Was the statement likely to disrupt a close working relationship, i.e. one with other staff, parents or students?
These guidelines make it clear that staff members do not have First Amendment protections when expressing personal, political, or religious views, or when airing grievances with their colleagues or superiors while in the classroom. This includes concerns over school security and safety. Outside the school, they may express their views as long as they remain within the above parameters. School leaders should remind staff that while they should lead and encourage students to carry out respectful dialogue on issues they feel passionately about, staff must refrain from conveying their own personal political views.
To assist school leaders in planning and preparation for student activism, the New Jersey Department of Education (NJDOE) has issued a document providing guidance to all school districts regarding student protests and demonstrations. Included in the document is a review of the Memorandum of Agreement between education and law enforcement officials as well as topics such as how to identify and secure an appropriate place for student gatherings and how to use social media to help discern what plans are being made in your school. Educators may also want to refer to the guide “Resources on Managing School Walkouts-Protests,” issued by the National Association of Secondary School Principals.
The Education and School Law Practice at MacMain Leinhauser is comprised of experienced attorneys who are dedicated to helping educators and school administrators handle the most complex legal matters. To learn more about the services we provide, call 484-318-7106 or contact us online.
Charter School Law
The Pennsylvania Charter School Law (PCSL) was approved in 1997 with the goal of education reform. These independently operated, publicly-funded schools provide parents with an affordable alternative to traditional public school for their children. Specialized curricula allow children the opportunity to try a different form of education, focusing on a particular subject such as science or art. However, charter schools have brought about some unforeseen changes to the education system over the past 20 years and some critics are calling for comprehensive reform of the law.
Critics of the PCSL Urge Reform
As of the 2015-2016 school year, there were 175 charter schools in Pennsylvania, including 14 cyber charter schools – schools that use the internet or other electronic means to deliver curricula to students. Since the 2002 update to the PCSL allowing for the creation of cyber charter schools, there have not been any major updates to the legislation. The Pennsylvania Auditor General criticizes the law and the manner in which some charter schools spend money, such as purchasing laptops for students who are then not required to return them.
He also points out that school districts without brick and mortar charter schools are paying thousands of dollars to enroll students in cyber charter schools. To combat high tuition rates for special education students, he suggests implementing a tiered payment system that takes into account the severity of students’ disabilities.
The President of the Education Policy and Leadership Center agrees that reform is necessary. State contributions of over $200 million annually were eliminated in 2011, burdening certain school districts that are responsible for paying for tuition and transportation costs and leading to a lack of appropriate oversight.
Proponents Agree That Reform is Needed
Supporters of the PCSL highlight the importance of providing opportunities for low-income and special needs students. A former Pittsburgh Public Schools teacher says that the school districts have shown overall improvement since 1997. Some believe that charter schools will prompt public school competition, leading to higher performance overall.
Proponents of the PCSL agree with critics that the law should be updated to meet ever-changing demands. Late last year, the Pennsylvania governor announced that a new charter school division would be created within the Pennsylvania Department of Education to provide resources and guidance to charter schools that will hopefully lead to better monitoring of school operations and academic performance. According to the President of the Education Policy and Leadership Center, many people agree that the system needs to be fixed. However, there is no consensus on how to go about doing it.
The Charter Schools staff at the Pennsylvania Department of Education reports that new resources designed to support charter schools will be released in 2018. Such resources include technical assistance toolkits containing nationally recognized best practices and referenceable answers to frequently asked questions for educators, administrators and parents.