Legal Update—
Items to Keep You
Up at Night
Michigan Community College Association
Trustee Institute
Traverse City, Michigan
July 25, 2015
Robert L. Duston
Saul Ewing LLP
Washington, D.C.
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The Federal Approach
Continues
• Regulation and enforcement, not
Legislation
• “Guidance” and interpretation over
rulemaking
• Using the Power of the Purse
• Increased accountability
• More audits and compliance reviews at
many agencies
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FLSA DEVELOPMENTS
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77 Years and Still Going
Strong
• The FLSA class action firms continue to thrive
 Daily reports of new suits and major settlements
• Even before the past two months DOL, IRS many state
agencies and plaintiff’s attorneys have been pushing
enforcement of misclassification (exempt/non-exempt,
employee/independent contractor) and off-the-clock
work
• The wired workforce and new economy add headaches to
old rules
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DOL Proposed Overtime Rules
• Rulemaking began in response to March
2014 Presidential Order
• Proposed Rule raising the salary threshold
for overtime exemptions to be issued any
time
• Changes in “duties” test may come later
• Does not require Congressional approval
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Increase in Salary Test
• From $455 to $970/week ($23,600 to
$50,440) (40th percentile of weekly
earnings for full-time salaried workers)
• Estimated to affect almost 5 million
employees nationwide
• Proposing an annual indexing to inflation,
which could mean annual review of
exempt/non-exempt status
• Potentially only 60 days to change
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Impacts
• What percentage of your FT
administrators, faculty, counselors and
other professionals, managers and others
who are classified as exempt—make more
than $50,440 as their base salary?
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“Overtime” in the Wired
Workforce
• Old issues, such as travel time to conferences
and outside meeting, teacher prep time
• Checking and responding to emails outside work
and on weekends
• “suffer and permit to work” and “On-call” time
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Duties Test Next?
• DOL is seeking comments on
 A minimum amount of time performing
“primary duty” (possibly the CA 50% rule)
 A shift back to more than one test
 Modifications of the “concurrent duties” rules
for executive employees
• Final rule could include both the salary increase
and duties test
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DOL “Guidance” on
Misclassification
• Issued July 15, 2015. WHD giving “fair
notice” of the rules before more stringent
enforcement
• Strongly suggests that most “independent
contractors” are in fact employees
• The “economic realities test” is much
broader than the traditional common law
right of control test
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The Six Factors
• Is the work integral to the employer’s business?
• Does the workers managerial skill (not hours)
affect the ability to make a profit or loss?
• Does the work require special skill or initiative?
• What is the worker’s relative investment
compared to the employers?
• Is the relationship permanent or indefinite?
• What is the nature and degree of the employer’s
control?
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The Practical Test
• Is the worker running his her own
business, and provides similar services to
others?
 If not, the worker is likely to be considered an
employee
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Does HR Know Who the
Contractors Are?
• Maybe. But at many colleges and universities, there is
little centralized control by HR in who can issues
contracts that receive a 1099.
• Maintenance, service, IT, other outsourced operations
• Grant writers, researchers, assistants, consultants,
trainers
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Joint Employer and
Contractors
• The guidance does not expressly discuss
outsourcing and joint employer rules
• If the worker is clearly employed by another
company that pays salaries and benefits, you
need to watch joint employer rules, are may be
ok
• If the worker is just referred by an agency, they
may be your employee
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Interns
• DOL enforcement and recent court cases
cracking down on “interns”
• Unless there is a clear “educational” benefit to
the worker, and the intern is not effectively
replacing an employee, the “intern” is probably
an employee
• This is a dual concern for colleges—your own
“interns” and approval of internships for
students
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LGBT Employment
Protections
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Changing Federal
Interpretations
• Michigan has no statewide protections, though many
localities do
• EEOC has, for several years, included gender identity as
a type of “gender discrimination, protecting transgender
applicants and employees
• EEOC started investigation sexual orientation claims as
“sex stereotyping”, and just issued an opinion that LGBT
discrimination is cover under Title VII (The case
involved federal employees, but that makes no
difference). Federal courts are likely to split on this
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ADA/504/Fair Housing Act
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Hot Topics
• ADA Amendments Act
• On-line course accessibility
• Removal of Students with Psychological
issue
• Construction Issues
• Animals under the ADA and FHA
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Implications of the ADA
Amendments Act
• The practical effects of the expansion of coverage
under the ADA Amendments Act are still not
understood by most colleges and employers
• Most medical and psychological issues,
for students and employees, are ADA and
Section 504 issues
• New Circuit Court decision on temporary
disabilities
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ADA Amendments Act
• Expanded the definition of “major life
activities”
• Changed the principles of interpretation in
favor of broad coverage
• Changed the meaning of “substantial
limitation”
• EEOC regulations will likely be given
substantial deference in other contexts
under the ADA and Section 504
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OCR Guidance on
ADA Amendments Act
• Issued 1/19/12 aimed at K-12, but equally
applicable to Higher Education
• Describes the broad expansion of the
definition of “disability” under the ADAAA
and that it applies to ADA Title II (public
entities) and Sec. 504
• Recommends review and revision of all
policies and procedures to ensure broader
definitions are applied
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Temporary Impairments
under the ADAAA
• Summers v. Altarum Institute, Corp., No.
13-1645 (4th Cir. Jan. 23, 2014)
• The first federal Circuit Court to apply the
ADAAA expanded definition of disability
• Held that a temporary impairment can be
a disability if it is “sufficiently severe”
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Implications for Employees
and Students
• Who can qualify for disability services and
accommodations in class and in other
programs and services
• Even greater overlap of ADA and other
rights (FMLA, Workers Comp)
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Communication Issues
Under the 2010 DOJ
Regulations
• Emphasis on “effective communication”
• Additional examples of auxiliary aids and services,
including accessible electronic and information
technology
• New definitions and rules for qualified interpreters and
readers
• Rules on effective communication with automated
attendant systems
• Emphasis on timely effective communication
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Website and On-line Course
Accessibility
• DOJ and OCR take the position that all
websites must be accessible under current
law
• DOJ and OCR are very actively investigating
and enforcing these principles
• DOJ has not issued final regulations on
which standard must be met, and may not do
so for years, but that is not a defense
• A huge problem for many colleges
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Dudley v. Miami University
• Blind student, represented by Disability Rights
Ohio, sued in 2014 alleging discrimination under
ADA Title II. DOJ intervened in May 2015 as a
Plaintiff.
• Vendor products alleged to be inaccessible
include PowerPoint, Google Docs, YouTube and
coursework management software from Pearson,
LearnSmart, Sapling, Turnitin, Vista Higher
Learning and WebAssign
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Other Alleged Violations
• Website pages that do not work with screen readers,
included untagged PDF documents
• Failing to convert books and docs in a timely manner
with barriers and doing so inaccurately (e.g. errors in
OCR conversion, no translation of symbols and images);
limiting conversion to materials students purchased
• Using PPT’s and web videos in classes without
simultaneous translation or captioning for blind or deaf
students
• Advertising of events by school groups, including
homecoming, that was not accessible
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HIV/AIDS and Other Denial
of Services
• A high priority for DOJ and will get an immediate
referral to D.C.
• Outright denial of services (e.g. Milton Hershey School);
denial or delay in providing services (various health care
providers)
• Students with Hepatitis C denied admission to NJ
Medical and Dental Colleges
• Many cases involving exclusion from day care centers
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Psychological Withdrawals
and Terminations
• ADA Title II and III do not have the same “direct threat
to self” language that the employment provisions have
• The Department of Education’s current position under
Section 504 is thus—only direct threat to others and that
is a high standard. Active enforcement
• OCR has been non-responsive to NACUA’s requests for
guidance
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New Construction and
Alterations—Never 100%
• We work with the best experts in the country. When they
do quality control on new construction they find dozens
or hundreds of errors. After barrier removal, there are
new problems. Not uncommon for a ramp to have to be
torn up 3-4 times to get it right
• Common omission—a path of travel to the public way
• What Helps?
 Training of architects and contractors
 Hiring the right expert for design review
 Site inspections by experts prior to accepting work
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Contract Provisions
• DOJ says that you cannot shift liability to others
by contract
• A number of new court decisions declaring that
indemnification clauses in architect, contractor
and other contracts are void as against public
policy because they shift the owners liability
• There are potential work-arounds, but you
cannot rely on them—need to have careful
oversight of compliance during design and
construction
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Fair Housing Act Issues
• Implications of recent interpretations of
the FHA are of concern to:
 Those community colleges who have
residential housing of any type
 Any school looking into housing or publicprivate partnerships to provide housing, on or
off campus
• Similar rules under Section 504 to other
parts of campus
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US v. UNK
• United States v. Univ. of Nebraska at Kearney, 940 F.
Supp. 2d 974 (D. Neb. 2013)
 DOJ brought case on behalf of students who were
denied permission to have their small dogs allowed in
their dorm rooms as “emotional support animals”
• DOJ and UNK filed cross motions for partial summary
judgment. DOJ’s motion was granted
• Holding: The Fair Housing Act applies to college
and university housing. Dorms are considered
“dwelling units” for FHA purposes
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FHA—Are all Animals
Permitted?
• Maybe—with documentation
• HUD and the Department of Education have
used a broader definition under the FHA and
Section 504 than DOJ. So does DOT for airlines
• HUD just issued guidance (April 2013) and
several well-publicized cases under Section 504
on campuses
• Includes “emotional support” and “therapy”
animals
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What Are Emotional Support
Animals?
• Essentially any animal that a health care provider will
say provides some medical or psychological benefit to a
person
• This is a loophole you can drive a cat, gerbil or snake
through. There is no standard definition or limits.
• Local ordinances on particular animals may be
superseded
• Cannot enforce no “pets rules” in covered housing if the
animal can pass this low bar
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Implications
• Schools can only require documentation from a
qualified health professional confirming the animal is
a support animal
• Under the FHA and Section 504, an animal may only
be excluded after an individualized inquiry that the
specific animal poses a direct threat to the health,
safety, or property of others
• Under all laws, assistance animals do not need to
certified, have completed training, wear an identifying
tag or be on a leash or harness
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The Return of
In Loco Parentis
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The Traditional Rule
• Bradshaw v. Rawlings, 612 F.2nd 135 (3rd Cir. 1979)
• Delaware Valley College student, drinking, and a car
accident
• “OUR BEGINNING POINT IS A RECOGNITION THAT
THE MODERN AMERICAN COLLEGE IN NOT AN
INSURER OF THE SAFETY OF ITS STUDENTS”
• For more than 30 years, no in loco parentis, colleges are
not insurers, these students are adults
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Campus
SaVE
Title IX
Section 504/
Rehab. Act
Breach of
Contract/
Consumer
Protect.
Clery Act
Campus
Security
Program/Threat
Assessment
Premises
Liability
In loco parentis?
Mandatory
Reporting/
Minors on
Campus
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Duty to Protect
from Self Harm
ADA
Title VI
An Academic Theory
• While the common law duty historically
rooted in in loco parentis has been
abolished
• New statutory duties to protect students
have all but completely replaced if not
expanded the duties owed by institutions
to protect their students’ well being and
safety
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Who do we Have to Protect?
• Those who cannot help themselves, in
whole or in part (minors on campus,
students with disabilities, students
impaired by substance abuse)
• Those who may pose a threat to
themselves or others
• Those who have been or may be harmed,
or assaulted, or stalked, or victimized by a
crime or bad behavior
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What Creates Risk?
• Historic knowledge with a perceived or
actual failure to act
• Voluntary assumption of duty–not in loco
parentis, but a specific duty–and not
doing it well
• Statutory duties that you fail to meet
• “Willful blindness”
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Implications
• The recent legal and regulatory changes and climate
makes more sense if the underlying assumption is that
college students, age 17-24, should be treated as
“children” rather than adults
• You cannot assume that courts or regulators will treat
students as adults—and need to decide how that affects
your policies, procedures and training
• Conversely, there are some laws and policies (e.g.
ADA/Section 504) that limit what you can do to adults
• Once again—between a rock and a hard place
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Compliance Overload
• The shear number and pace of compliance
changes is daunting. In just the campus
safety area you have:



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
Title IX and sexual assault
Cleary Act and Campus SaVe
Campus violence/shootings
Hazing and Cyber-bullying
Protection of minors on campus
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Check Your Personnel
• Do you have a Title IX coordinator? Cleary compliance
coordinator?
• Do you have the right people doing the right job? Maybe
your HR director has a busy enough job, and should not
also be the Title IX coordinator
• Who has the point on each one of these issues? If you
cannot identify that person in 2 minutes, you have a
problem
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Check Your Policies and Protocols
• Do you meet the latest, latest on Title
IX/Campus SaVE?
• Who is “the institution”? Trying to speak
with one voice in a time of crisis
• Is there a higher level compliance team?
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Check Your Representations
• What are you saying to the consumer public:
 In your handbooks?
 In your online presence?
 In press releases?
 Through Trustees?
 Through news articles?
• Does it match up? And is it current, and right?
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Emphasize Your Core
Institutional Values
• What are you about?
• And is this what you want to be?
• Think about all of the really good, important, meaningful
things you do for your students. Do not lose sight of
them, even when you feel like you are “under siege” or
the walls against in loco parentis are crumbling
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Title IX and Other Policies and
Procedures for Harassment,
Assault and Discrimination
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April 2011 DCL
• Reflects OCR’s experience that policies, procedures and
training on sex harassment and sexual violence need to
be reviewed, and more training needs to be done
• All of these principles applying equally to all EEO
policies and complaint procedures enforced by
OCR (Title VI and Section 504)
• Schools liable if a “school official with authority to
address the alleged discrimination and to institute
corrective measures had actual knowledge of the
discrimination and failed to adequately respond.” A
deliberate indifference standard
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Key OCR Requirements
• Informal methods of resolution must involve some type
of mediator or intermediary from the school; not one-onone with the alleged perpetrator
• Both sides must have the same rights and procedures,
including appeal
• Other steps to prevent retaliation, including periodic
outreach to complainants even after the complaint is
resolved
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This is NOT Just Title IX
• OCR has emphasized in the DCL and other guidance that
these principles apply to other non-discrimination laws,
including Title VI, Section 504 and the Age
Discrimination Act
• Therefore, these principles are likely to apply to
 Any type of alleged harassment or discrimination
 By anyone (including employees or third parties)
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Questions for Your School
• Who is the Title IX Coordinator(s) Section 504? Title VI?
 Can you find them in the directory?
 Does everyone know who they are?
• Who gets training on sexual harassment and sexual
violence? Or other investigation issues? How often?
• Do your policies:




clearly prohibit sexual violence and sexual harassment?
address actions off campus?
address cyber harassment?
prohibit retaliation?
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Questions for Your School
• When someone handles intake of a complaint (Title IX
Coordinator, campus police, others) do they:
 Advise of all other rights?
 Explain any other counseling, law enforcement and
medical options?
 Not discourage students from using other remedies?
• Do your procedures include interim remedies?
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Are your Complaint and
Investigation Procedures Clear
 How and where to file complaints and a roadmap of
the process?
 Provide timelines?
 Explain how the complaint process intertwines with
the discipline process?
 Not impose too high (or low) a burden of proof?
 Clear about the limits of confidentiality?
 Ensure that there is no direct cross-examination in
sexual harassment or violence cases?
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Questions?
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Contact Information
Robert L. Duston
202.342.3415 (o)
703.338.6353 (c)
rduston@saul.com
To access past Alerts and other information
on our Higher Education and Labor,
Employment and Employee Benefits
practices, go to www.saul.com, click
“publications” or “Services”-- then
“practice groups”.
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