Tag: entitled

  • Teacher with PTSD entitled to accommodation under ADA, 2nd Circuit says

    Teacher with PTSD entitled to accommodation under ADA, 2nd Circuit says

    This audio is auto-generated. Please let us know if you have feedback.

    Dive Brief:

    • A high school math teacher with post-traumatic stress disorder was entitled to a 15-minute break as a reasonable accommodation under the Americans with Disabilities Act even if she didn’t need one to perform her job’s essential functions, the 2nd U.S. Circuit Court of Appeals held March 25 in Tudor v. Whitehall Central School District.
    • The high school math teacher in New York sued her school district under the ADA for failing to accommodate her PTSD, according to court documents. She claimed the school district refused to guarantee her a 15-minute break every afternoon during the 2019-2020 school year. She said she used the breaks to compose herself away from the workplace, which tended to trigger her symptoms.
    • The teacher acknowledged that even without the breaks, she could perform her job’s essential functions, albeit “under great duress and harm.” On that basis, the district court found she had no failure-to-accommodate claim and granted summary judgment against her. The 2nd Circuit vacated the ruling and sent the case back for reconsideration.

    Dive Insight:

    Prohibited discrimination under the ADA includes, absent undue hardship to the employer, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” the 2nd Circuit explained, quoting the statute.

    In turn, the ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions” of their job, the appeals court pointed out.

    The district court, relying on this wording, incorrectly inferred that an employee who can perform the job’s essential functions without an accommodation does not, as a matter of law, have a claim for failure to accommodate, the panel said.

    But “a straightforward reading of the ADA confirms that an employee may qualify for a reasonable accommodation even if she can perform the essential functions of her job” without an accommodation, the 2nd Circuit emphasized.

    In other words, “accommodations that are not strictly necessary for an employee’s performance of essential functions may still be reasonable and therefore required by the ADA,” the court held.

    The 2nd Circuit, which covers Connecticut, New York and Vermont, noted that most of the other federal circuit courts of appeal have made similar rulings.

    Relevant to the teacher’s case, the ADA defines reasonable accommodation to include job restructuring or modifying an employee’s schedule, the 2nd Circuit said. A modified schedule may involve adjusting arrival or departure times or providing periodic breaks, according to a U.S. Equal Employment Opportunity Commission guidance.

    For instance, the EEOC announced last week that a construction supply company agreed to pay $150,000 to settle allegations it failed to provide a diabetic worker with requested snack breaks throughout the day to regulate his blood sugar.

    Reasonable accommodations also include allowing an employee to use accrued paid leave and providing unpaid leave, the EEOC guidance states.

    However, the “reasonableness” of a requested accommodation is a fact-specific question, the 2nd Circuit explained.

    On remand, the school district might demonstrate that the teacher’s request for a break while assigned to afternoon study hall was unreasonable and imposed an undue hardship, the court pointed out.

    At the same time, the teacher’s long history of receiving her requested accommodation and the school district’s evolving policies indicated that her request may have been reasonable, notwithstanding that she performed her essential functions without it, the 2nd Circuit noted.

    Court documents reflected that in 2008, the teacher sought and received permission to take one 15-minute break during each of her morning and afternoon “prep periods,” when she wasn’t responsible for overseeing students.

    In 2016, the school district indicated she needed to submit additional documentation to support her request. Rather than doing so, the teacher took paid sick leave and then leave under the Family and Medical Leave Act, according to court records.

    When she returned from FMLA leave in 2017, and throughout the 2018-2019 school year, she was allowed to take a morning and afternoon break when a school librarian could watch the students.

    At issue here were the afternoon breaks the following year that she wasn’t guaranteed (but took anyway) when the librarian or another employee wasn’t to cover for her, court records reflected.

    Source link

  • Universities aren’t entitled to autonomy. They have to earn it

    Universities aren’t entitled to autonomy. They have to earn it

    By Edward Venning, Managing Partner at Six Ravens Consulting.

    Not for the first time, an interventionist Secretary of State stands ready to help English universities. Not surprisingly, every item in her agenda – from regional engagement to business models – will place conditions of ‘wide-scale reform’ upon universities.

    We should reasonably worry. Not because of Bridget Phillipson, but because we have traded away our self-determination for years.

    The debate about autonomy has a certain monotheistic quality. Everyone agrees autonomy is the rock upon which knowledge is built, while vigorously sinning against it. Different governments tie finance to reform, as with Phillipson, or attempt the oxymoron of regulating academic freedom. Meanwhile, universities accept cash with strings attached from government, major donors and international students. Government generally cops the blame for this too, while we appeal to inalienable protections in the Higher Education Reform Act (HERA).

    But autonomy is not absolute or inviolable. It is not determined by functional independence or private status. It is a behaviour. It comes from actively managing a complex web of power relationships and trade-offs while protecting our control over key functions. It is built through organisational design, concerned with incentives, accountability and dynamic relationship management. The more robustly we design, the less likely our autonomy will be tested.

    As nations have found throughout history, autonomy is far from inalienable. Anton Muscatelli points out that this complex negotiation requires constant attention and re-calibration. It must be promoted through the active management of three forces:

    • to comply with state direction and societal expectation;
    • to conform with sector and industrial norms; and
    • to copy each other’s strategies.

    The three forces are not in themselves good or bad for autonomy. A minimal level of regulation protects the student interest. Good standards add value. Some strategies deserve emulation. They are forces for good to the extent to which we use them to improve our engagement with the world. These forces become toxic through neglect, uncritical or anticipatory compliance and inept execution.

    And our approach to university autonomy could certainly do with an upgrade. The defensive case is given a thorough outing by James Tooley and John Drew, in Cry Freedom: The regulatory assault on institutional autonomy in England’s universities (2024). In this entertaining beasting of the Office for Students, they draw invidious comparisons between what the regulator is supposed to do and what it actually does. They devastate Susan Lapworth’s claim that institutional autonomy can be overridden. Only a lawyer might improve (or rebut) their analysis of regulatory overreach, even if the reader wonders what, short of class action, would induce DfE and OfS to accept their recommendations.

    The sector shackles itself

    Equally, a fair-minded judge would accept that the sector’s supine approach to autonomy undermines their case for change. Our surrender of autonomy to the state for money is part of a wider readiness to sell the pass in exchange for benefit.

    No one can blame the government (or indeed any major industry or donor) for offering a Faustian pact. It is in their nature to seek control. Nor should universities be blamed for seeking patronage from the state, the market or indeed non-state actors. No one, as Jo Johnson recently argued in his report about the China question, would seriously suggest universities should disengage from the world. Instead, we need a robust, dynamic framework for engagement, exerting maximum self-determination in some areas while accepting constraints in others.

    It is worth remembering that HERA busies itself with a single dimension of autonomy. This is founded on the precept of the ‘self-critical, cohesive community of scholars’. While of central importance, academic autonomy is one of four dimensions of autonomy recognised by the European University Association. The other three dimensions (organisational, financial and staffing) represent the soft underbelly of autonomy, absent the legitimacy of the academic.

    We lack the toolkit to recognise and manage trade-offs across all four of the EUA’s dimensions. Regulatory interest in academic freedom is a clear-cut incursion on academic autonomy. The same is true of staff and student demands to end relationships with Israeli universities. Pressure on non-academic autonomy is often ostensibly internal. The University and College Union’s (UCU) Four Fights, #MeToo and Black Lives Matter have all successfully targeted the non-academic dimensions of autonomy. In fact, there is almost always a dynamic connection between internal and external forces. After all, the 1968 protests began with the right of male and female students to sleep together and ended by permanently altering university governance.

    Away from the academic space, autonomy is lost in less obvious ways.

    For example, universities cede considerable organisational autonomy through voluntary commitments to a wide range of charters, benchmarks and league tables. But each external assurance scheme concedes executive room for manoeuvre. Almost worse for a knowledge institution, they concede expertise to a third party. The schemes are regressive because they create a planning burden that small institutions cannot service. And the goalposts move without our input – all assurance schemes ratchet their criteria over time. Sometimes this means that compliance may seem tantamount to wishful thinking. Even critics get confused. At one point, the last government was simultaneously asking universities to leave some schemes (such as Stonewall’s famous Diversity Champions Programme and Athena Swan) and adopt others (such as the International Holocaust Remembrance Alliance (IHRA) definition of anti-semitism).

    Ganging up

    Autonomy can be defined as a type of managed interdependence. It is possible to collaborate with third parties and still maintain self-determination. Indeed, this may be the only way most universities can achieve the scale necessary to confront the most monumental tasks.

    Active, relational autonomy is central to effective partnership with government, industry and civil society in complex, interconnected challenges. For example, some of the biggest bets in biotech and STEM have been made as joint ventures.

    At the operational level, control over admissions and technology is rightly seen as foundational, and yet we are content for UCAS and Jisc to manage critical processes and infrastructure. Meanwhile, numerous universities have spent millions trying to build a proprietary full-stack online learning offer, while Silicon Valley spends billions on the same task. Arguably, our autonomy is weakest when we go it alone.

    This will become increasingly pressing as stressed universities contemplate the possibility of forced merger. What mechanisms will sustain their autonomy, identity and distinctiveness in the arms of a bigger institution?

    As shown by Gill Evans, much of the sector used to operate within much larger non-academic organisations, such as local government. Even the most autonomous parts of the sector were interdependent. The collegiate traditions of Oxford and Cambridge demonstrate how shared governance protects autonomy while enabling scale. Royal Charters were mostly awarded to institutions which were (then or subsequently) members of a bigger university. Group structures and formal partnerships between institutions provide varying degrees of freedom to their constituent parts, above a critical threshold of autonomy. These arrangements distribute risk and create safety in numbers, mitigating the hierarchy that makes some institutions more vulnerable than others.

    Asserting autonomy

    The sector needs more muscular collective action. Individual institutions struggle to resist pressure from regulators, funders and other stakeholders. A stronger sector voice could help establish red lines while engaging constructively with reform agendas.

    As argued in my recent debate paper, the overall ability of the sector to exert its autonomy is low compared to other sectors. This has several solutions. We need to establish a strong, leadership body across the tertiary ecosystem, robustly managing the big picture on resource distribution and regulatory burden. We need more sophisticated uses of corporate form, not just the blunt instrument of M&A. But above all, we need to recover an assertive self-confidence.

    Let’s be inspired by the private sector and our own history. The original English universities were guilds, muscular and monopolistic in behaviour. Commercial autonomy is not abstract or passive, nor does it derive in a mystical way from the capitalist impulse. It is a self-generating, assertive precondition for entering the market. If universities cannot make a positive case for self-determination, and are not inclined to exercise it, we cannot expect the government of the day – or anyone else – to respect our autonomy. Instead, we need dynamic, structured engagement with external and internal forces. Autonomy will be the result.

    Source link

  • Supreme Court: Highly Compensated Employee Entitled to Overtime Because Employer Did Not Pay on a Salary Basis – CUPA-HR

    Supreme Court: Highly Compensated Employee Entitled to Overtime Because Employer Did Not Pay on a Salary Basis – CUPA-HR

    by CUPA-HR | February 23, 2023

    On February 22, the U.S. Supreme Court issued its decision in Helix Energy Solutions, Inc. v. Hewitt, finding that an employee making over $200,000 per year was entitled to overtime pay under the Fair Labor Standards Act (FLSA) because he was not paid on a salary basis. The case is a reminder that exempt status depends not only on how much the employee is paid, but also on how they are paid. Employers may want to be particularly careful when providing exempt employees — including part-time exempt employees — with different weekly pay based on hours worked.

    Under U.S. Department of Labor (DOL) regulations, an employee must meet the following three requirements to be considered an executive, administrative or professional employee exempt from the FLSA’s overtime pay mandates: (1) perform duties consistent with those exempt categories as set forth by the DOL, (2) be paid a minimum salary (currently set at $684 per week), and (3) be paid on a salary basis. The employer in the case argued that the employee was exempt because he was paid $963 per day, therefore making at least the minimum salary of $684 per week, and he met the duties test for an executive.

    The court found, however, that the employee was not paid on a salary basis as set forth in Section 541.602 of DOL regulations and was therefore not exempt. Section 541.602 requires exempt employees to receive the full pre-determined salary for any week in which they perform any work without regard to the number of days or hours worked. Specifically, the court said the employee “did not get a salary (of $963 or any other amount) because his weekly take-home pay could be as little as $963 or as much as $13,482, depending on how many days he worked.” The court did say, however, that daily-rate workers could qualify as paid on a salary basis if the pay met the conditions set out in DOL regulations §541.604(b).

    In a dissenting opinion, Justice Brett Kavanaugh contended that the salary threshold and salary basis test — both of which DOL created through regulations — may not be consistent with the FLSA itself. Specifically, Kavanaugh said:

    “The Act focuses on whether the employee performs executive duties, not how much an employee is paid or how an employee is paid. So it is questionable whether the Department’s regulations — which look not only at an employee’s duties but also at how much an employee is paid and how an employee is paid — will survive if and when the regulations are challenged as inconsistent with the Act. It is especially dubious for the regulations to focus on how an employee is paid (for example, by salary, wage, commission, or bonus) to determine whether the employee is a bona fide executive. An executive employee’s duties (and perhaps his total compensation) may be relevant to assessing whether the employee is a bona fide executive. But I am hard pressed to understand why it would matter for assessing executive status whether an employee is paid by salary, wage, commission, bonus, or some combination thereof.”

    Since the employer in this case failed to raise the challenge to the regulations properly, the issue was not considered before the court.  As such, it remains unclear how many justices agree with Kavanaugh and whether the majority of the court would overturn the DOL’s salary basis and threshold tests.

    CUPA-HR continues to monitor all updates relating to the FLSA and its implementing regulations and will keep members apprised of significant news with respect to the overtime issue.



    Source link