text
 
banner

Home Sweet Home: It May Not Be So Sweet…

[May 12, 2014]  The media and the government are both paying more attention, and we urge educational administrators to take a second look as well.

The question is whether independent schools, colleges and universities are obligated to treat the rental value and utility costs of a school-owned residence, occupied by a school employee (e.g., Head of School, faculty member), as a component of the employee’s gross taxable income.  In other words, may the school provide housing to the employee as a tax-free benefit, or must the school report the value of the housing benefit on the employee’s W-2 form?

Under the applicable federal legal standard, the default is that an educational institution is obligated to include the rental value and utility cost of the employee’s house provided by the school within his or her gross income, unless the school’s housing arrangement satisfies a “three criteria test.”  The test is whether:  (i) the school’s housing is furnished on the school premises; (ii) the school’s housing is furnished for the convenience of the school; and (iii) the employee is required to accept such housing arrangement as a condition of employment.  Or, alternatively, the school falls within the “qualified campus lodging” exception (i.e., the school’s housing is located on campus, furnished for use as a residence, and the employee pays an adequate rent).

The prongs of these tests are not always easy to satisfy – especially in the context of a day school (non-boarding).  Historically, on-campus housing has been a fabulous perk for educational leaders.  Today, the regulatory environment is such that a formal legal opinion should be rendered as to the taxability of the benefit.  It is no longer sufficient to simply recite that on-campus residence is a requirement of the job – a stronger rationale may be required by the government to satisfy a non-taxable benefit.

In addition, it is important to note that state laws do not always mirror the federal law.  For example, New Jersey tax law uses the three criteria test and does not recognize the “qualified campus lodging” alternative.  Thus, the “qualified campus lodging” benefit could be tax-free for federal purposes, but still taxable for New Jersey purposes.

Analyzing the excludability of housing benefits from an employee’s gross income is highly fact-intensive.  We recommend carefully evaluating the school’s housing arrangement in light of applicable federal and state laws.

Union Rights For Student Athletes? NLRB Decision Creates A Whole New Ball Game For Colleges And Universities

[April 24, 2014] Football players for Northwestern University (the “University”) who receive grant-in-aid scholarships may vote for union representation under federal labor law, according to a recent, controversial ruling by the Regional Director (“RD”) of the National Labor Relations Board (“NLRB” or “Board”) office in Chicago. The secret-ballot election has been scheduled to take place tomorrow, April 25, 2014.

The University has filed a request for review of the RD’s decision by the full Board. If the Board agrees to review the RD’s decision, then the Board could either (i) stay the election pending the outcome of its review, or (ii) let the election proceed, but with the ballots impounded until the review is completed.

If the Board lets the RD’s decision stand (either after review or by declining review), and if in turn, the football players vote to unionize, then the University might refuse to bargain with the union. This would force the union to file an unfair labor practice charge, the first step in a legal process that includes rights of appeal to the United States Court of Appeals and then to the United States Supreme Court. (If the players voted against unionization, then the legal process would end, but the players could seek another union election after one year.)

If allowed to stand, the RD’s ruling would be a “game changer” for many colleges and universities. In this regard, union organizing campaigns targeted toward student athletes, followed by costly collective bargaining involving big-ticket demands, could become the norm.

Background

Earlier this year, a labor organization called College Athletes Players Association (“CAPA”) filed a representation petition with the RD. The petition asked the RD to schedule a secret-ballot election for University football players receiving grant-in-aid scholarships (the “Players”) to determine if they wished to be represented by CAPA for purposes of collective bargaining with the University.

The University objected to the representation petition, primarily on the ground that its football players are not employees and, as such, do not have a right to unionize under federal labor law. In this regard, the National Labor Relations Act (the “Act”) provides collective bargaining rights only to nonsupervisory “employees” of employers covered by the Act. (In the educational realm, the Board generally (i) asserts jurisdiction over private and nonprofit colleges, universities, and other schools with gross annual revenue of $1 million or more; (ii) treats public educational institutions as exempt from the Act; and (iii) declines to assert jurisdiction over employees of religious organizations who are involved in effectuating the religious purpose of the organization. Please note, however, that entities not covered by the Act may be covered by state labor laws.)

The University and CAPA (which, by the way, receives financial support from the United Steelworkers union) participated in an evidentiary hearing at the NLRB and then submitted briefs in support of their respective positions. The briefs were forwarded to the RD for a decision.

The RD’s Decision

The RD concluded that the Players are employees of the University for purposes of the Act. In reaching this conclusion, the RD applied the common law definition of “employee.” Under this definition, an employee is a person who (1) performs services for another, (2) under a contract of hire, (3) subject to the other’s control or right of control, and (4) in return for payment. According to the RD, each of these elements was satisfied.

First, the RD found that the Players’ participation on the football team constituted “valuable services” to the University. He noted that the University’s football program generated approximately $235 million in revenue between 2003 and 2012 through ticket sales, television contracts, merchandise sales, and licensing agreements. According to the RD, the University “was able to utilize this economic benefit provided by the services of its football team in any manner it chose.” The RD also reasoned that the Players’ services have resulted in a winning football program, which has had an “immeasurable positive impact” on alumni giving and the number of applicants for enrollment at the University.

Second, in the RD’s view, the “tender” that each Player was required to sign before the beginning of each scholarship period served “as an employment contract.” The tender is a document providing detailed information about the duration of the scholarship and the conditions under which scholarship funds are to be provided. Noting that the National Collegiate Athletic Association (“NCAA”) prohibits student athletes from receiving additional compensation or otherwise profiting from their athletic ability and reputation, the RD concluded that “the scholarship players are truly dependent on their scholarships to pay for basic necessities, including food and shelter,” making the tender all the more akin to an employment contract.

Third, the RD determined that the Players perform their services under the University’s “strict and exacting control” throughout the entire year. In particular, the RD found that the University requires the Players: (a) to commit 50-60 hours per week to football-related activities during a six-week training camp prior to the academic year; (b) to commit 40-50 hours per week to football-related activities during the “football season” portion of the academic year, despite NCAA rules purporting to limit such activities to 20 hours per week once the academic year begins; and (c) to abide by restrictions governing numerous aspects of their personal lives, including, among other things, their living arrangements, outside employment, and off-campus travel.

Fourth, according to the RD, “it is clear that the scholarships the players receive is compensation for the athletic services they perform throughout the calendar year, but especially during the regular season and postseason.” In this regard, the RD noted that “while it is true that the players do not receive a paycheck in the traditional sense, they nonetheless receive a substantial economic benefit for playing football” in the form of “tuition, fees, room, board, and books for up to five years.” The monetary value of these scholarships, the RD found, was as much as $76,000 per year – and in excess of $250,000 in the aggregate – for many of the Players.

The RD rejected the University’s argument that the Board’s decision in Brown University, 342 NLRB 483 (2004), required a finding that the football players are not employees. In Brown University, the Board ruled that “graduate assistants” who sought union representation were not employees within the meaning of the Act. The RD distinguished Brown University as being premised on a finding that the graduate assistants were “primarily students.” To the contrary, explained the RD, “it cannot be said that [the Northwestern University football players] are ‘primarily students’ who ‘spend only a limited number of hours performing their athletic duties.’”

Implications and Recommendations

If the RD’s ruling is allowed to stand, then student athletes who receive scholarships from colleges and universities are likely to become targeted for aggressive union organizing. This means, in effect, that members of many collegiate football teams, basketball teams, and the like (i.e., student athletes whose teams require them to put in substantial hours and generate substantial revenues, as reflected in the RD’s first and third factors) could opt for representation by CAPA or other labor organizations and then proceed to demand collective bargaining with the institution.

What would the parameters be for collective bargaining involving student athletes? This is far from clear. CAPA’s Web site suggests that, at a minimum, protecting student athletes from injury and assisting with medical expenses would be areas of emphasis. In this regard, CAPA contends that the NCAA denies having a legal duty to protect college athletes from injury; has failed to investigate and minimize concussion-related deaths; and ignores reports that coaches pressure athletic trainers to clear concussed players for action. CAPA also wants to loosen restrictions on how and the extent to which student athletes may be compensated.

Educational institutions – particularly those that generate revenue through their athletic programs – are urged to monitor the Northwestern University case closely. As the matter now stands, the prospect of union organizing campaigns in dormitories and athletic facilities; collective bargaining sessions with union-represented student athletes; and demands for big-ticket items such as guaranteed medical benefits for sports injuries is one step closer to reality. Given what is at stake, the game plan for educational institutions should be to stay informed and, in turn, to be prepared.

Emergency Medical Response: What’s Your Plan?

[March 18, 2014] Envision this scary scenario: the school community is gathered around the field for the season-ending lacrosse game between rivals, when an 11th grader collapses on the field, in need of emergency treatment.  If there is no medical professional on-site, are members of the faculty or administration prepared to rush in and respond appropriately? Should they?

Many states have so-called “good Samaritan” laws on their books which exempt lay people from liability for good faith attempts at cardiopulmonary resuscitation (CPR) and other methods (defibrillation) to save a person’s life.  Nonetheless, independent schools will want to ensure that their own policies around the rendering of emergency medical care—for example, in student, employee, and athletic handbooks—reflect applicable state law and best practices.  For example, at the end of February, the Massachusetts legislature amended the Commonwealth’s good Samaritan law to broaden its applicability, so that anyone other than paid medical or emergency responders, may avoid liability for their acts and omissions (absent gross negligence or willful misconduct) when attempting to save a life.

Specifically, Massachusetts S. Bill 1993, which will take effect May 21, 2014, extends liability protection in civil suit for damages to any person, who in good faith and not for a fee, attempts to render medical care. The law had previously excluded protection for persons “whose usual and regular duties” included the provision of emergency medical care—meaning physicians, off-duty firefighters and police officers, and other persons trained in CPR, automatic external defibrillators (AEDs), or basic cardiac life support. Now, however, in Massachusetts, anyone may make a good faith response to an individual in need of medical attention without fear of liability.

Massachusetts follows other states, such as New Jersey and North Carolina, that had already passed similar “good Samaritan” laws granting immunity from civil liability for the use of AEDs in good faith during an emergency.  In fact, New Jersey not only provides immunity to the individuals rendering emergency care by use of AEDs, but also extends this protection to the person or entity providing or maintaining the equipment, the person or entity who provided training in CPR and use of the defibrillator, and the prescribing licensed physician.

Recognizing the importance of early medical response and appreciating the additional protection this amendment affords, independent schools may want to develop or update existing policies for emergency medical responses during school events. These policies may include establishing a response team, installing AEDs on campus with maps illustrating their locations, or implementing AED, CPR, and first aid training for employees and coaching staff.

Please do not hesitate to contact us if you have any questions about this information or need our assistance regarding emergency response protocols or other school crisis readiness policies and practices.

The President’s Challenge: Stop Sexual Assaults

[January 23, 2014] The White House report released yesterday (“Rape and Sexual Assault- A Renewed Call To Action“) is a stern reminder that all educational institutions — not just colleges, universities and other federally-funded institutions that must comply with Title IX — have a moral, if not legal, obligation to take all reasonable measures to reduce sexual violence and misconduct at their institutions.

The data and numbers highlighted in the report are noteworthy.

  • Nearly 1 in 5 women (22 million) have been raped in their lifetime.
  • Almost 1.6 million men have been raped in their lifetime.
  • Nearly half of female survivors were raped before they were 18.
  • 1 in 5 women was sexually assaulted while in college.
  • Assaults in college appear to be fueled by alcohol and drugs, often occurring at parties.
  • Most victims know their perpetrator.
  • 12% of high school girls report having been forced to have sex.

The costs of sexual misconduct are significant. They include not only the potentially irreparable damage to millions of young victims and survivors, but also potentially staggering litigation costs (which are not limited to attorneys’ fees), and damage to an educational institution’s reputation.

The President’s announcement and the Vice President’s leading role demonstrate the White Houses’s commitment to this issue. Thus, among other things, the White House has stepped up federal compliance and enforcement efforts. Colleges and universities have been well-advised to take notice. But rededication of efforts is now in order.

Accordingly, independent schools should now take note. We strongly encourage our secondary schools to act to reduce the risk of sexual misconduct on their campuses and to prepare their students to act appropriately when they get to college.

With this in mind, colleges, universities, and independent schools should:

  • Focus violence prevention education on perpetrators, survivors and bystanders. This should include getting men more involved, by educating the potential perpetrators, and by seeking the commitment and support of bystanders.
  • Educate (require attendance at preventive education programs) for faculty, other employees, and all students, providing information about the institution’s policies, practices and resources regarding sexual assaults and sexual misconduct. This will generally be tailored to the audience members’ ages and each institution’s campus and culture. For example, we are currently providing boundary training (‘Shades Of Grey And Blurred Lines’) at many schools.
  • In addition, schools may want to address these issues directly (bluntly) with applicants, to set an appropriate tone early on and discourage applicants who might be inclined to engage in misconduct.
  • Explore various ways to engage students, looking for whatever may generate their greatest involvement.
  • Understand your institution’s culture, and take appropriate action to redefine it if necessary. (Examine, and learn from, your institution’s past.)
  • Update policies and practices for responding to allegations of sexual misconduct and violence. This should include a review of disciplinary consequences.
  • Properly educate school officials responsible for responding to complaints. This will include education on a range of issues, including training for investigators and adjudicators involved in handling complaints of sexual assault (something that we have been doing for our clients recently, as well).
  • Consider whether the institution is properly organized (e.g., should HR be a separate department, as was recommended for Penn State by the Freeh Report); does it have the necessary resources to effectively administer and enforce the institution’s policies and protocols?
  • Provide survivors with appropriate resources and remedies to continue their education.
  • Address the need for fairness to the accused throughout the institution’s policies, protocols, and training, including the potential for false accusations.
  • Develop and maintain strong relationships with local law enforcement.

In short, institutions should update policies, practices and protocols, implementing best practices for preventing and responding to sexual misconduct, sexual assault, and rape.

The value of these measures may be obvious to those who have closely followed the stories at institutions in the headlines, from Penn State to Horace Mann, from Amherst to Deerfield. The challenge is not knowing what to do, in general. The challenge is in deciding to do it and tailoring these measures to your institution.

We are able and willing to assist.

Sara Goldsmith Schwartz, William E. Hannum III and the Education Team at Schwartz Hannum PC

***

An article written by William E. Hannum III entitled “The Right Thing To Do: Preparing For And Responding To Allegations Of Sexual Abuse At Independent Schools” may provide additional, helpful guidance.

***

William E. Hannum III is speaking on this topic at the Policy Institute, at independent schools and universities from Virginia to California, Indiana and Missouri.  Please join him! For more information, please click here.

***

For a copy of the White House report, please click here.

Shades Of Grey And Blurred Lines

[January 9, 2014]  My phone rings almost every day with a question about boundaries.  Given today’s complex legal landscape, this is not surprising.

Educators at independent schools play a special role in the lives of students, well beyond just that of caring teacher: mentor, coach, disciplinarian, and friend.  It is in a teacher’s role as the latter that lines may be blurred and boundaries need to be enforced.  It may be obvious to most that intimate relations between teachers and students is a bad idea on many fronts–legally, morally, and ethically–however, in the independent school world, where many interactions happen outside of the classroom, let alone in cyberspace, it is important to revisit the complex definitions of what is appropriate and in the best interests of students.  Of course, the concept of boundaries in the independent school world transcends the teacher/student context, and often includes teacher/parent, teacher/alumni, student/student and any number of other pairings in which positive, close connections can quickly turn into an uncomfortable and negative experience that expands beyond appropriate boundaries.

In response to the current climate and the frequent inquiries from school leaders, the Firm has developed many iterations of an interactive workshop to encourage dialogue and exploration of these issues, including defining the boundaries and addressing the legal and ethical ramifications of inappropriate boundary crossing. Using real world scenarios from the Firm’s counseling experience and beyond, in addition to referencing the School’s employee and student handbooks for applicable policies, our workshop guides educators through the “grey areas” of mentoring and caring for students on the right side of the legal and moral divide. Our workshop can also be tailored for Board retreats.