Sexual Misconduct on College Campuses
Sexual misconduct occurs on college campuses every day. Most recently, several faculty and staff at Ohio State University, the University of Southern California, and Michigan State University have been accused of failing to protect their students from the sexual misconduct of coaches and campus physicians. While most universities have developed their own internal method for handling claims of sexual misconduct, there has been little federal guidance governing sexual misconduct on college campuses. This may soon change.
Handling of Sexual Misconduct Charges
Between 2011 and 2017, the U.S. Department of Education conducted over 450 Title IX investigations. In 2011, the Obama Administration’s Department of Education drafted a Dear Colleague letter, which addressed a perceived failure to protect victims of sexual assault on college campuses. Following the distribution of the Dear Colleague letter to over 4,000 colleges and universities, many schools amended their policies to be more victim-friendly. In some cases, school administrations followed the letter’s advisement to adopt a preponderance of evidence standard of proof, which is the lowest legal standard, requiring a jury find over a 50 percent likelihood of guilt against the accuser.
Proposed Changes in Sexual Harassment Policies
Secretary of Education, Betsy DeVos, recently announced proposed changes affecting the way many higher education institutions handle sexual misconduct complaints. Under the suggested federal rules, schools can adopt their own higher evidentiary standards and make it much more difficult for a victim of sexual harassment to prove his or her case.
Those accused of committing sexual misconduct would have greater procedural protections under the proposed changes, including the right to use mediation to resolve sexual misconduct claims. Previously, mediation of sexual misconduct claims was deemed by some to be too traumatic for the victims, who would be subjected to direct and cross examination by the alleged abuser.
The proposed regulations also adopt a narrow definition of sexual harassment as being unwelcome conduct based on sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity. Only when a school has actual knowledge of sexual misconduct would there be potential liability. Another significant change is that the college or university has no duty to investigate any incidents occurring off-campus, such as in fraternity houses, even if such incidents involve students.
Limiting the Liability of Colleges and Universities
The draft proposal would impose liability on higher education institutions only in those cases where a formal complaint of sexual misconduct has been filed against the school. This eliminates liability when a sexual assault victim only reports the incident to a dormitory residential advisor. A school would be liable for failure to respond to sexual misconduct only if the administration’s response is clearly unreasonable, considering known circumstances.
Critics believe the changes would make it more difficult for the victims of sexual harassment to prove their cases and easier for colleges and universities to avoid legal liability. Although there would be a public comment period regarding the proposed rules, the changes could go into effect without requiring a Congressional vote.
If your organization is facing sexual misconduct allegations, contact the experienced Pennsylvania education law lawyers at MacMain Leinhauser are ready to assist you. For more information, contact us at 484-318-7106 or contact us online. Located in West Chester, Pennsylvania, we serve clients from the surrounding areas.
The Importance of I-9 and H-1B Compliance
Today, especially under the Trump administration, there has been much focus on the legality of individuals residing in this country. As such, worksite audits and maintaining a legal work force are imperative. Each U.S. employer is subject to an audit of its workers’ employment eligibility. Due to this, it is important to ensure that each business is being compliant with its Form I-9.
Employers that are sponsoring H-1B workers for employment must have their Public Access Files (PAF) so that they may formulate an understanding of who is permitted to inspect them. It is imperative that businesses adhere to the laws surrounding worksite audits, investigations, and enforcement measures.
Penalties for Non-Compliance
Beginning in January 2017, the U.S. Immigration and Customs Enforcement Agency (ICE) was responsible for issuing penalties to businesses that did not adhere to these laws. Even simple mistakes, such as paperwork violations, can now cost companies anywhere between $16 and $2,126 per each employee’s I-9 form.
Federal law requires that employers verify the identities and eligibility of each person whom they hire. This information must be documented using the Employment Eligibility Verification Form I-9. The purpose of this is to deter illegal citizens from taking jobs within the country. I-9 audits are conducted via the following process:
- ICE/Homeland Security Investigations (HIS) serves an employer with a Notice of Inspection (Pending Audit).
- Employers must produce their I-9 forms and other necessary documents, such as payroll records, with three days of notice.
- HIS audit team reviews every form for technical or procedural violations and allows the employer 10 days to remedy.
Those employers who do not adhere to these laws will likely face civil fines if found during an I-9 inspection. Additionally, if these employers knowingly violate the law, they may even face criminal prosecution. All illegal employees that are found during this process, who are not allowed to stay in the country, are subject to arrest and removal from the U.S.
The H-1B Program
Under the H-1B program, the Department of Labor (DOL) must ensure that H-1B workers receive the wages promised to them on the Labor Condition Application (LCA). Employers must maintain a Public Access File with the correct documents to support that they attest and are compliant. The DOL may only initiate H-1B investigations under one of the following four reasons:
- It receives a complaint from an afflicted individual or organization.
- It receives specific credible information from a reliable source that the employer has not met certain LCA conditions, has engaged in a pattern that demonstrates failure to meet the conditions, or has committed a substantial failure to meet conditions that are applicable to multiple employees.
- DOL has found that the employer has committed a willful failure to meet a condition specified in the LCA or has willfully misrepresented a material fact in the same, over the last five years.
- DOL has reasonable cause to believe that the employer is not in compliance. If this is the case, the Secretary may certify an investigation.
The DOL may determine civil money penalties, among others, dependent upon the type and severity of the violation.
What Should Each Employer Do?
Each employer should make sure to designate who is responsible for dealing with immigration compliance and should review the current procedures, processes, and related documents. The immigration compliance team should also outline a plan if it ends up facing an audit and conduct periodic internal audits to ensure that all documents are correctly prepared. Employers should consider holding Human Resource training for those responsible for compliance.
If you or your company has been involved in any issues surrounding Form I-9 and H-1B Compliance, it is important to contact an attorney that knows what is at stake, what is expected, and how to help your organization. For more information, contact MacMain Leinhauser by filling out an online form or call us at 484-318-7106. Located in West Chester, Pennsylvania, we serve clients from the surrounding areas.
Charter Schools vs Public Schools
A common misconception regarding charter schools is that they are not public schools. Individuals who are unfamiliar with charter schools may believe that because they are not affiliated with the public-school district in their community that they are private institutions. Charter schools are public institutions that reflect similar goals that public schools wish to achieve for students but with significant differences in their requirements, focus, and operation.
Rules and Regulations
Since charter schools design their own charters, which dictate how the school will be run, they may have more freedom and flexibility to cater to a specific student population. They may need to follow basic educational standards set out by the state to receive state funding, but most decisions for the charter school will be made by the board of trustees, who use guidelines drawn up by the school as reference.
Both charter and public schools cannot request students to pay tuition or discriminate against any student. Public schools may receive funding through local, state, or federal means from local taxes. Although charter schools rely on public funding, they can receive private funding as well. Public funding for charter schools, though, is made available on a per-pupil basis and may not be as plentiful as what public schools receive.
While public schools require specific certifications for teachers mandated by the state, charter schools may be more lenient in their qualifications for instructors. Depending on the state, charter schools may not require their teachers to possess any type of certification. Public schools require teachers to have proper certification as legislated by the state school board.
Students must apply to a charter school while public school students only need to enroll. If a specific number of spots exist at a charter school due to limited accommodations, applicants may be selected through a lottery system.
The state board of education creates strict standards and accountability measures that public schools must follow. Charter schools differ greatly because the fundamental purpose is to create their own rules and offer programs that support their vision. Class materials and curricula may be adjusted according to students’ needs, and the school may choose a theme such as the arts upon which to focus.
For information on ongoing legal matters involving charter schools or legal representation on education law issues, call MacMain Leinhauser at 484-318-7106 or contact us online. We are in West Chester, Pennsylvania, and we serve clients throughout the state.
State Prisons Step Up Safety to Protect Workers
Eighteen prison workers from three different correctional facilities in Pennsylvania were recently taken to the hospital for falling ill after contact with an unidentified toxic substance. Five incidents occurred over a two-week period earlier this month when workers came into close contact with prisoners’ belongings and through physical contact with inmates. The state is calling for improved security measures to protect prison staff.
Prison guards, nurses, and doctors experienced tingling sensations in their arms, fingers, and legs, as well as dizziness, increased heart rate, and headaches after coming into close contact with inmates’ belongings. Those affected encountered the substance during searches of prison cells, and through skin to skin contact during routine medical procedures.
Preventive Safety Measures
The substance is being analyzed, but it is believed to be a synthetic product that is being smuggled to inmates inside the prison. Prison officials are trying to prevent further instances by carefully inspecting inmate mail and scanning visitors entering the prison. Decontamination stations have been set up in some areas, and protective clothing and face masks, gloves, and protective eyewear are being used to prevent exposure to the substance.
Prison administrators are taking further action to train prison staff on how to recognize and handle suspicious substances, and how to properly dispose of contaminated equipment and clothing. The use of body scanners is also being implemented in prisons across the state. Prison officials for the state have acknowledged an increase in drug trafficking throughout Pennsylvania prisons, particularly in the western portion of the state. Physical assaults of prison staff by inmates has risen in recent months as drug trafficking has increased.
A spokesperson for the Pennsylvania Department of Corrections recently announced that they are increasing efforts to protect the guards, medical personnel, and staff working in the state’s prison system. New violence prevention and response training programs, intelligence briefings, and police personnel have been added to many of the state’s prisons. Officials are hopeful that their efforts to increase security through education, training, and personnel support will decrease incidents of violence on prison staff.
Specific training programs and security measures will include:
- Use of personal protective equipment during searches and processing
- In-house fire, emergency response teams, and hazardous materials handling
- Increase in supplies of specialized gloves, respirators, and hazardous materials handling suits
- Specialized hazardous waste containers
- Increased use of body scanners
- Mail processing training programs
- Increasing K-9 teams for inspection
- Training on K-9 Narcan injectors
Attorneys at MacMain Leinhauser advise and counsel officials working to improve prison conditions. Call us today at 484-318-7106 or contact us online to schedule a consultation. Our West Chester, Pennsylvania office serves clients across the state.