The 2015 biennial state budget adopted by 2015 Wisconsin Act 55 (Act 55) made several important changes to Wisconsin law that impact students with disabilities. School districts should be aware that the changes may affect the state aid a District receives each year in connection with special education students.<\/p>\n
Special Needs Scholarship Program<\/strong><\/p>\n Act 55 creates a special needs scholarship program beginning in the 2016-17 school year that allows students with disabilities to attend an eligible private school at public expense. See <\/em>Wis. Stat. \u00a7 115.7915.<\/p>\n The Scholarship<\/u>. The Department will pay an eligible private school $12,000 per student for the 2016-17 school year and will adjust the scholarship thereafter to include increases in the per pupil revenue limit and statewide categorical aid. The Department will stop payments when a student graduates from high school, turns twenty-one, or the IEP team determines the student is no longer a child with a disability. For each student who receives a scholarship, the Department will also decrease the state aid to the student\u2019s resident school district to account for the costs of the scholarship.<\/p>\n Eligible Students<\/u>. To be eligible for a scholarship to attend a private school, a student must have an IEP or 504 Services Plan, have attended a public school in Wisconsin for the entire school year immediately preceding the school year for which the student receives the scholarship, and have applied for open enrollment to at least one nonresident school district for the year in which the student is applying for a scholarship and been rejected by all the nonresident schools to which the student applied. If the student appealed the rejection to the Department of Public Instruction (\u201cDPI\u201d), DPI must have affirmed the rejection.<\/p>\n Private Schools<\/u>. Private schools participating in the scholarship program have to notify DPI of their intent to participate in the program and provide an estimate of the number of spaces available for scholarship recipients. If the number of applicants exceeds the number of spaces available, the private school must select students randomly, although the school may give preference to siblings of pupils already attending the school. To be eligible, a private school must be approved by the State Superintendent or be accredited by one of several enumerated private school organizations by August 1 preceding the school year for which the scholarship is awarded. In addition, a participating private school must comply with Title VI of the Civil Rights Act, adhere to rules regarding criminal background checks of employees, and submit accurate financial information.<\/p>\n All eligible private schools must provide to each applicant a profile of the school\u2019s special education program, including methods of instruction and qualifications of teachers. In addition, the private school must implement the child\u2019s most recent IEP or Services Plan as modified by agreement between the private school and the child\u2019s parents, and provide a record of the implementation of those services, including an evaluation of the child\u2019s progress. The schools must also regularly report to the parent of the child on the child\u2019s progress.<\/p>\n DPI may bar any private school that fails to meet the requirements of the statute from participating in the program. Students attending a program that DPI has barred from participating may attend another participating private school and continue to receive a scholarship.<\/p>\n Resident District<\/u>. In addition to a reduction in aid, resident districts are required to: (1) notify annually the parents of each child with a disability of the scholarship program; (2) administer standardized testing for scholarship recipients at no cost if the private school does not administer them; and (3) ensure that the IEP team of a child receiving a scholarship reevaluates the child as required by law.<\/p>\n Open Enrollment Changes<\/strong><\/p>\n Open enrollment allows students to apply to attend public school in a school district other than the one in which they reside. Under prior law, when a student with a disability applied for open enrollment to a nonresident district, the nonresident district was required to send an estimate of the cost to provide the special education or related services required in the student\u2019s IEP to the applicant\u2019s resident district. The resident district could accept the estimate and pay the costs or it could deny the student\u2019s application on the basis that the cost would impose an undue financial burden on the resident district. If the resident district denied the application, the student remained in the resident district.<\/p>\n Act 55 repealed those portions of the open enrollment law, thereby eliminating the cost estimates and denials based on undue burden. In addition, Act 55 restructured the funding provisions, starting in the 2016-17 school year, by implementing a per pupil transfer payment from DPI to the nonresident district for each student with a disability open enrolled in the nonresident district and by eliminating the resident district\u2019s obligation to pay the costs of special education or related services. See <\/em>Wis. Stat. \u00a7118.51(17)(b).<\/p>\n DPI will pay the nonresident district a $12,000 per pupil transfer amount for each special education student in the 2016-17 school year and will adjust that amount thereafter to include an increase in the per pupil revenue limit and statewide categorical aid. DPI will also increase the state aid payment to a district that has more nonresident students than resident students receiving special education services, and decrease state aid to a district that has more resident students than nonresident students receiving special education services.<\/p>\n Special Education Transition Grants<\/strong><\/p>\n Act 55 added a new grant program in the 2016-17 school year for school districts and independent (2r) charter schools that will award $1,000 for each former pupil with disabilities who, within one year of leaving high school, either enrolls in certain higher education or training or has been, or remains, competitively employed. See<\/em> Wis. Stat. \u00a7 115.884.<\/p>\n A district must demonstrate the following to the DPI: (1) the student was enrolled in the school during the 2014-15 or 2015-16 school year and during that time had an IEP; and (2) at the time the district applies for the grant, the student meets the enrollment or employment criteria in the statute. DPI is authorized to prorate the amount of its payments under this program among the school districts if the appropriation for 2016-17 is insufficient.<\/p>\n High Cost Special Education Aid Cap Lowered<\/strong><\/p>\n The High Cost Special Aid Program is a financial resource for school districts serving students with disabilities whose needs are particularly costly. DPI combines an annual state appropriation with federal IDEA discretionary funds to reimburse costs incurred each year. Under prior law, for each child whose non-administrative special education costs exceeded $30,000 in the previous school year, DPI would provide aid equal to 90% of the costs over $30,000. Going forward, DPI will only cover 70% of those costs. See <\/em>Wis. Stat. \u00a7 115.881(2). DPI still has the authority to prorate payments to eligible applicants based on appropriations. \u00a0Further, an additional $5,000,000 in funding for this program will be available in 2016-17. While DPI does not anticipate an impact on districts\u2019 current funding levels, it encourages districts to budget conservatively for this program.<\/p>\n","excerpt":" The 2015 biennial state budget adopted by 2015 Wisconsin Act 55 (Act 55) made several important changes to Wisconsin law that impact students with disabilities. Continue reading →<\/span><\/a><\/p>\n","date":"2015-11-09 14:34:11","categories":[{"id":50,"slug":"fyi-school-law-newsletter","title":"School Law - FYI Newsletter","description":"","parent":32,"post_count":74},{"id":26,"slug":"school-law","title":"School Law","description":"","parent":3,"post_count":114}]},{"id":8307,"type":"publications","status":"publish","title":"Proposed Regulations Issued Concerning FLSA Exemptions From Overtime","title_plain":"Proposed Regulations Issued Concerning FLSA Exemptions From Overtime","content":" On June 30, 2015, the Department of Labor (Department) issued proposed regulations which, if finalized, will have a significant impact on exemptions under the Fair Labor Standards Act (FLSA). These proposed regulations have been anticipated for some time, ever since March 2014, when President Obama issued a memorandum to the Secretary of Labor to \u201cupdate and modernize\u201d the overtime exemption rules under the FLSA. It is possible that the final regulations will be adopted and in effect by 2016. Past history shows that the Department will likely not provide a long grace period for compliance, with perhaps as little as 120 days to comply. This FYI will briefly summarize the proposed regulations and offer advice on next steps.<\/p>\n Background \/ Current Regulations<\/strong><\/p>\n The FLSA is a federal law that sets minimum wage, overtime, equal pay, recordkeeping, and child labor standards for employees who are covered by the Act. State and local governments, including school districts, must comply fully with the FLSA. Employees who are covered by the Act fall into two categories: non\u2011exempt and exempt. Non-exempt employees are subject to all<\/u> of the FLSA requirements. Exempt employees are not<\/u> subject to the minimum wage and overtime provisions, but are still subject to other FLSA requirements. It is the employer\u2019s burden to prove that an employee is exempt.<\/p>\n Exemptions are identified by different categories, including bona fide executive, administrative, academic administrative, professional, and computer employees. The FLSA regulations define the requirements for each of these exemptions. Each exemption generally includes three basic requirements: (1) a salary basis requirement; (2) a salary level requirement; and (3) a primary duty requirement.<\/p>\n Below is a brief summary of each of the exemptions and the positions within a school district that generally fall within these exemptions.<\/p>\n The current regulations also contain a relaxed duties test for certain \u201chighly compensated\u201d employees who receive total annual compensation of $100,000 or more and are paid at least $455 per week.<\/p>\n Proposed Regulations<\/strong><\/p>\n Changes to Salary Amounts.<\/em> Prior to the new proposed regulations being released, many observers believed that the proposed regulations would significantly increase the salary threshold. Some even believed that the Department would double this salary threshold to somewhere between $42,000 and $52,000 per year. These predictions held true.<\/p>\n However, the proposed regulations do not identify a specific amount that would remain stable over time. Instead, the proposed regulations generally recommend setting the minimum salary level for these exemptions at the 40th<\/sup> percentile of weekly earnings for full-time employees based on Bureau of Labor Statistics data, which is currently $921 per week or $47,892 annually. The Department estimates that, by the time the final rule is issued in 2016, this amount will increase to $970 per week or $50,440 annually. Under the Department\u2019s proposal, these minimum salary levels will be adjusted upwards on an annual basis using either the percentile of weekly earnings or inflation. Notably, the proposed regulations do not change the fact that teachers are not subject to any salary level requirement under the FLSA. Further, under the proposed regulations, computer employees may still be paid on an hourly basis at a rate of not less than $27.63 per hour.<\/p>\n The proposed regulations would also raise the compensation requirement needed to qualify for the highly compensated employee exemption to equal the 90th<\/sup> percentile of weekly earnings, or $122,148 annually (90th<\/sup> percentile of weekly earnings for full-time salaried workers for 2016). This salary level will also be adjusted on an annual basis.<\/p>\n The Department also asked for comments related to whether non-discretionary bonuses should be included in the calculation of weekly salary in order to meet the new proposed threshold. Currently, the Department considers base salary only in evaluating whether the employee meets the salary threshold.<\/p>\n No Changes to Type and Amount of Exempt Duties.<\/em> Prior to the proposed regulations being released, many observers also believed that the proposed regulations would tighten the rules regarding which \u201cduties\u201d an exempt employee may undertake. Some observers believed the FLSA rules would be reworked to require that a certain percentage of an employee\u2019s time be spent on exempt tasks. In the end, however, the Department decided not to make any specific proposals to revise the duties test at this time.<\/p>\n Instead, the Department has requested public comment on whether changes should be made to the duties test, and if so, what they should be. The Department expressed concern that many employees who are classified as exempt are actually performing a disproportionate amount of non-exempt work. Based on this concern, additional, significant changes could be on the horizon when the final rule is published.<\/p>\n Next Steps.<\/em> The Department has established a 60-day period for the public to submit written comments to the proposed rule. The comments are currently due on or before September 4, 2015. After this comment period, the Department will review the submitted comments and issue a final rule, which could be finalized and in effect by 2016. Because the Department has the power to issue the rule without Congressional approval, many expect the rule to be challenged in court. Regardless, the new rule could be finalized and in effect by 2016.<\/p>\n What To Do Now<\/strong><\/p>\n It is important to note that these regulations are only proposed changes. School districts should keep a close eye on the progress of these proposed FLSA regulations — they could change over the next several months. Districts should anticipate that the final regulations may contain not only changes to the salary level test, but also likely changes to the duties test as well. It is unlikely, however, that any final rule will alter the rule that the salary level requirement does not apply to teachers.<\/p>\n Two important steps right now include:<\/p>\n There are a number of different options for school districts if they determine that an employee who was exempt under the former regulations now may be nonexempt under the proposed regulations. For example, a school district does not necessarily need to maintain the employee\u2019s exempt status by increasing the employee\u2019s salary; instead, it could identify that employee as nonexempt and decide to limit the hours of that employee to avoid having to pay overtime. However, if a district continues to assert that the employee is exempt, the district must be able to show that the employee meets every requirement of the exemption.<\/p>\n It is important to note that the proposed regulations will certainly not impact every position within a school district (e.g., many support staff will still be nonexempt, and many administrators and teachers will still be exempt). However, it is advisable to identify any impact that the regulations may have on certain positions and the potential impact of future budgeting or hiring. In 2004, the Department gave employers only 120 days to comply, and it may provide a similar short grace period again once the regulations are finalized. Therefore, attention to these changes is important right now.<\/p>\n For more information about this topic, please contact Rick Verstegen, the author of this article, or any of the Boardman & Clark, LLP School Law Practice Group attorneys listed below.<\/em><\/p>\n B & C News & Events<\/strong><\/p>\n July 29-31, 2015 \u2013 Mike Julka will present \u201cDealing with Challenging School Board Members: Legal Principles and Strategies for the District Administration\u201d as part of the Wisconsin Association of School District Administrators (WASDA) Legal Seminar, held at the Stone Harbor Resort in Sturgeon Bay, WI. For more information, visit the WASDA website<\/a>. <\/em><\/p>\n July 29, 2015, JoAnn Hart and Tess O\u2019Brien-Heinzen will present \u201cDisciplining Students with Behavioral Issues\u201d as part of a live webcast for National Business Institute (NBI). For more information, visit the NBI website<\/a>. <\/em><\/p>\n August 11, 2015, Rick Verstegen will present \u201cK-12 Student Records Management: Mastering FERPA, NCLB, and PPRA Record Handling Requirements and Avoiding the Penalties\u201d as part of a webinar for EducationAdminWebAdvisor. For more information, visit the EducationAdminWebAdvisor website<\/a>.<\/em><\/p>\n","excerpt":" Proposed Regulations Issued Concerning FLSA Exemptions From Overtime Continue reading →<\/span><\/a><\/p>\n","date":"2015-07-13 12:21:56","categories":[{"id":50,"slug":"fyi-school-law-newsletter","title":"School Law - FYI Newsletter","description":"","parent":32,"post_count":74},{"id":26,"slug":"school-law","title":"School Law","description":"","parent":3,"post_count":114}]},{"id":8199,"type":"publications","status":"publish","title":"FYI School Law Newsletter – June 2015","title_plain":"FYI School Law Newsletter – June 2015","content":" In the last month, there have been two court cases involving the Wisconsin Public Records Law that provide significant guidance for school districts. In both cases the courts ruled in favor of the actions taken by the records custodian. This FYI will briefly discuss each case and then consider the impact of these cases on school districts.<\/p>\n \u201cNotes\u201d Compiled During Investigation Not Subject to Disclosure<\/strong><\/p>\n One case, Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District<\/em>, Case No.\u00a02014AP1256 (June 4, 2015), involved a request to the Wisconsin Rapids Public School District for records related to allegations of impropriety surrounding a school athletic program. The District had conducted an investigation into these allegations, including interviews conducted by District employees. The employees had created documents regarding the interviews.<\/p>\n In response to the request, the District withheld documents for various reasons, including that the requested documents did not qualify as \u201crecords\u201d under the Public Records Law because they were \u201cnotes\u201d that are excluded from the definition of a \u201crecord.\u201d The definition of \u201crecord\u201d under the law states that \u201c\u2018[r]ecord\u2019 does not include drafts, notes, preliminary computations and like materials prepared for the originator\u2019s personal use.\u201d The District noted that the withheld documents were notes created for the personal use of District employees since they were never exchanged, shared with anyone, or otherwise available to anyone other than the person drafting the notes.<\/p>\n The Wisconsin Court of Appeals concluded that the documents were \u201cnotes\u201d and therefore were not \u201crecords\u201d subject to disclosure under the law. According to the Court, the term \u201cnotes\u201d covers a broad range of frequently created, informal writings. The \u201cnotes\u201d in this case were this type of writings since they were mostly handwritten and at times barely legible; included copies of post-it notes and telephone message slips; and reflected hurried, fragmentary, and informal writing. In light of the above, the Court concluded that the writings were in the nature of notes — created for and used by the originators as part of their preparation for, or as part of their processing after, interviews that they conducted.<\/p>\n After the Court determined that the documents were \u201cnotes,\u201d it then focused on whether the \u201cnotes\u201d were \u201cprepared for the originator\u2019s personal use.\u201d In its analysis, the Court adopted the rationale set forth in a Wisconsin Attorney General opinion. In the opinion, the Attorney General noted that the exclusion of material \u201cprepared for the originator\u2019s personal use\u201d is to be construed narrowly. Most typically, this exclusion may be invoked properly where a person takes notes for the sole purpose of refreshing his or her recollection at a later time. If the person confers with others for the purpose of verifying the correctness of the notes (but the sole purpose for such verification and retention continues to be to refresh one\u2019s recollection at a later time), the notes continue to fall within the exclusion. However, if one\u2019s notes are distributed to others for the purpose of communicating information (or if notes are retained for the purpose of memorializing agency activity), the notes would go beyond mere personal use and would therefore not be excluded from the definition of a \u201crecord.\u201d In this case, the Court held that, based on the specific facts, the notes taken by the employees were for their personal use and therefore were not \u201crecords.\u201d<\/p>\n No Unlawful Denial or Delay By Municipality When No Record Existed<\/strong><\/p>\n In another case, Journal Times v. City of Racine Board of Police and Fire<\/em>, 2015 WI 56 (June 18, 2015), the Wisconsin Supreme Court reviewed whether the City of Racine Board of Police and Fire Commission unlawfully denied or delayed disclosure of minutes of a meeting. The newspaper had requested to know the vote from a closed session meeting during which the Commission had decided to reopen the process of hiring a police chief.<\/p>\n Although no records existed at the time of the request (the person who normally took notes and drafted minutes attended by telephone and did not draft minutes), the request was denied based on policy reasons. Shortly after the denial, the newspaper filed a complaint. After the complaint was filed, an attorney for the Commission informed the newspaper of the vote taken during the closed session (even though no minutes were prepared). However, the newspaper did not drop the lawsuit; instead, it argued that it was entitled to attorney fees because the Commission unlawfully denied or delayed the release of the minutes.<\/p>\n The Supreme Court concluded that the newspaper was not entitled to its requested relief based on the facts of the case. The Court based its decision in part on the fact that no responsive record existed at the time of the request and that a reasonable interpretation of the request was that it was for \u201cinformation,\u201d rather than a specific record. Further, the Commission responded to the newspaper with reasonable diligence and released the requested information, even though it was not required to provide the information in response to the request. As a result, the newspaper was not entitled to attorney fees because it did not prevail in substantial part in the lawsuit.<\/p>\n Important Considerations for Records Custodians <\/strong><\/p>\n Both of these cases provide good reminders for school district records custodians related to initial steps in response to any records request.<\/p>\n One initial step is to determine whether any records exist that are within the scope of the records request. If no record exists, then the records custodian can simply reply to the requester that no record exists that is within the scope of the request. The Public Records Law does not require district officials to create records by extracting information from existing records and compiling it into a new format, nor does it require responses to requests for information that is not in a record.<\/p>\n Another initial step is to determine whether the documents within the scope of the request are actually \u201crecords,\u201d as that term is defined under the Public Records Law. Some documents may fall outside of the definition of \u201crecords\u201d because they are either \u201cnotes\u201d or \u201cdrafts\u201d or purely personal in nature. A careful examination of the documents and the circumstances surrounding the creation of the documents is important before making any determination to disclose the documents.<\/p>\n <\/p>\n","excerpt":" Two recent court cases involving records are significant for school districts Continue reading →<\/span><\/a><\/p>\n","date":"2015-06-30 15:05:04","categories":[{"id":50,"slug":"fyi-school-law-newsletter","title":"School Law - FYI Newsletter","description":"","parent":32,"post_count":74},{"id":26,"slug":"school-law","title":"School Law","description":"","parent":3,"post_count":114}]},{"id":7794,"type":"publications","status":"publish","title":"FYI School Law Newsletter – April 2015","title_plain":"FYI School Law Newsletter – April 2015","content":" Amidst an era of change in Wisconsin in funding for education, school accountability, and the regulation of labor, the School Law Practice Group at Boardman & Clark remains a steady and reliable legal source for school law clients. For over fifty-five years, our school law attorneys have served as general and special counsel to more than ninety school districts, CESAs, charter schools, and technical colleges throughout Wisconsin. The School Law Practice Group consists of fifteen attorneys and one paralegal. Eleven attorneys have over ten years of experience working in school law, with six having over twenty\u2011five years of experience.<\/p>\n Our team is fortunate to serve as counsel to all of our clients and is honored to have been recognized throughout the years for our commitment to service. Mike Julka, Jim Ruhly, and David Rohrer have been awarded with the Wisconsin School Attorney Association\u2019s George Tipler Award for distinguished service in school law. Mike Julka, Jim Ruhly, David Rohrer, JoAnn Hart, Doug Witte, and Rick Verstegen have all been elected to the WSAA Board of Directors. Steve Zach has served on the Oregon School Board for 16 years and will continue to another three-year term.<\/p>\n Recent Recognition<\/strong><\/span><\/p>\n Consistent with these past accomplishments, our firm and individual members of our team continue today to be recognized with awards that reflect our collective commitment to school law.<\/p>\n WASB Business Honor Roll<\/em><\/p>\n In January 2015, Boardman & Clark was added to the Wisconsin Association of School Boards\u2019 Business Honor Roll on a nomination from the Middleton-Cross Plains Area School District. This honor reflects our commitment to our client school districts and our support of their community initiatives. We are grateful for the opportunity to partner with the Middleton-Cross Plains Area School District in this respect.<\/p>\n WASDA Outstanding Educator<\/em><\/p>\n Also this year, Mike Julka will be the recipient of the 2015 WASDA Outstanding Educator Award. This award is given annually to individuals who have made recognizable outstanding contributions in the field of education. Mike has 39 years of experience in school and labor\/employment law and is recognized throughout the state for his school law experience.<\/p>\n COSA Board of Directors<\/em><\/p>\n Mike has also received national recognition for his commitment to school law, most recently through his election to the Board of Directors for the National School Boards Association\u2019s Council of School Attorneys where he will serve a two-year term. Mike will follow Attorney James Clark who established the firm\u2019s school law practice and who also served on the COSA Board.<\/p>\n Upcoming Events<\/strong><\/span><\/p>\n The members of Boardman & Clark\u2019s School Law Practice Group continue in the tradition of providing outstanding service to our school clients. Our attorneys specialize in specific areas of school law to assure that our clients are afforded efficient and cost-effective services. With a niche-focused practice, our attorneys stay current on school law issues so they can provide immediate and insightful solutions to problems faced by our clients. To benefit from our expertise, clients can hear our attorneys present at numerous events throughout the year. Upcoming events are listed below.<\/p>\n Seminars:<\/em><\/p>\n May 7, 2015: JoAnn Hart and Tess O\u2019Brien-Heinzen will be presenting at the WCASS Spring Conference on “Accommodating Students With Concussions” (JoAnn Hart) and “Best Practices in the Nuts and Bolts of Disciplining Students with Disabilities” (Tess O\u2019Brien-Heinzen).<\/p>\n<\/li>\n<\/ul>\n Board and Board Member Training:<\/em><\/p>\n The School Law Practice Group is currently scheduled to meet with several school boards across the state for training designed to assist board members in understanding their roles, responsibilities, and duties as school board members. The training also addresses \u201cBoardmanship\u201d principles designed to make boards most efficient and effective. This training is particularly relevant as boards welcome new members and board dynamics change. If your board is interested in meeting with one of our attorneys on this or any other topic, please contact us.<\/p>\n","excerpt":" Amidst an era of change in Wisconsin in funding for education, school accountability, and the regulation of labor, the School Law Practice Group at Boardman & Clark remains a steady legal source for school law clients. Continue reading →<\/span><\/a><\/p>\n","date":"2015-04-30 10:44:31","categories":[{"id":50,"slug":"fyi-school-law-newsletter","title":"School Law - FYI Newsletter","description":"","parent":32,"post_count":74},{"id":26,"slug":"school-law","title":"School Law","description":"","parent":3,"post_count":114}]},{"id":7633,"type":"publications","status":"publish","title":"FYI School Law Newsletter \u2013 March 2015","title_plain":"FYI School Law Newsletter \u2013 March 2015","content":" The use of social media is burgeoning, causing employers to consider not only how to use it as an effective workplace tool, but also how and whether employee social media can be regulated.<\/p>\n It is estimated that, as of January 2014, close to ninety percent of adults went on-line and almost three-quarters of those users frequented social media sites, such as Facebook. Surveys reflect that almost ninety percent of American companies use social networking for business purposes and nearly half monitor the use of social networking by employees at work.<\/p>\n Several developments in the law relating to an employer’s ability to regulate employee social media use in employment decisions are worth noting. This FYI will discuss restrictions on the use of social media in employment decisions arising from statutory regulation, labor laws, and the First Amendment.<\/p>\n Statutory Regulation<\/strong><\/p>\n In Wisconsin, employers, including school districts, are prohibited by a new state statute from requesting that an employee or applicant for employment disclose to the employer their user name, password, or other security information. The statute permits employers to obtain such information with respect to any device or account furnished by the employer; to view, access, or use information that is available to the public; and to require an employee to allow employer observation of an employee\u2019s personal internet account, if the employer has reason to believe that employment-related misconduct has occurred in that account. This statute was discussed in more detail in the April, 2014 FYI titled \u201cNew Law Restricts District Rights To Employee and Student Personal Internet Accounts.\u201d<\/p>\n Concerted Activity<\/strong><\/p>\n The National Labor Relations Act (\u201cAct\u201d) does not apply directly to Wisconsin school districts, but the provisions of the Act which impact social media are similar to those state law provisions which govern school districts in Wisconsin. Decisions under the Act can be persuasive in the interpretation of the parallel Wisconsin \u201cconcerted activity\u201d statutory provisions. Under Section 7 of the Act, employees have the right to organize for the purpose of collective bargaining and for purposes of \u201cengaging in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.\u201d Any employer action which interferes with these Section 7 rights violates the Act.<\/p>\n The most significant protection afforded employees has been with respect to \u201cconcerted activity.\u201d Employee conduct is \u201cconcerted,\u201d and thus protected by Section 7, if it is engaged in by at least one other employee, or on behalf of a group of employees, i.e., if one employee is acting alone in the attempt to initiate group action on an issue of terms and conditions of employment. For example, discussion among staff members critical of district compensation policies are protected communications since they fall within the scope of concerted activity.<\/p>\n In the last several years, the National Labor Relations Board (\u201cNLRB\u201d) has taken an active enforcement posture of the \u201cconcerted activity\u201d clause, particularly as it relates to employee use of social media. Employee communications in social media are provided the same protection as other employee communications. Thus, an employer who does not approve of an employee communication on social media sites that constitutes \u201cconcerted activity\u201d cannot take an adverse employment action against the employees who were engaged in that communication. The \u201cconcerted activity\u201d clause, however, does not protect an employee who engages in social media communications which complain about the quality of services or product of the employer or which constitute individual gripes against the employer or supervisor.<\/p>\n Social Media Policies<\/strong><\/p>\n Employer policies that could chill or curb concerted activity have been found to be overbroad and unenforceable by the NLRB. This has been particularly true of social media policies. While the Wisconsin Employment Relations Commission, which enforces the Wisconsin \u201cconcerted activity\u201d statutory provisions, has not similarly addressed district policies under these provisions, the federal stance toward policies which impact concerted activity merits consideration by districts in the creation or maintenance of social media policies.<\/p>\n In general, the NLRB has found the following policy provisions to be unenforceable:<\/p>\n The following policies have met with NLRB approval:<\/p>\n First Amendment<\/strong><\/p>\n In addition to the protections afforded employee communications on social media under the NLRA \u201cconcerted activity\u201d clause, such communications by district employees may fall within the protection of the First Amendment. For example, the fact that an employee \u201cliked\u201d a Facebook comment was found to be protected speech under the circumstances in one court case. To determine whether social media communications are protected speech, the analysis given other types of speech applies:<\/p>\n In the social medial context, much of the litigation involving the First Amendment has centered on whether social media speech is a matter of public concern. For example, Facebook posts related to the termination of employees after a political election have been found to be of public concern, while the airing of private grievances has not been characterized as a public concern. Employment action founded upon employee speech, including social media communications, may impact an employee\u2019s First Amendment rights and must be assessed with that risk prior to implementation.<\/p>\n Given these potential restrictions on the use of social media by school districts in the employment context, we have developed the following Check-Up List for you to review and determine whether your district\u2019s policies, handbook provisions, and practices conform to the legal principles set forth in this FYI.<\/p>\n\n
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Two Recent Court Cases Involving Records Are Significant For School Districts<\/h3>\n
Boardman & Clark Maintains Long-Standing Commitment to School Law<\/strong><\/h3>\n
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Regulation of the Use of Social Media in Employment Decisions<\/h3>\n
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Check-Up List<\/h6>\n