Trend Lines: Employment-Related Issues at Independent Schools

Fall 2019

By Whitney Silverman

trendlines.jpgIndependent school administrators are educators, advisers, coaches, mentors, fundraisers, managers, and everything in between. Given that, it’s sometimes easy to forget that they’re also employers.
As employers, independent schools find themselves in a rapidly changing and complex legal environment. And it’s critical not just to have a good handle on federal employment law, but also to track and understand what’s happening at the state and even local level. While the conversation generally tends to focus on policies coming out of Washington, states and cities across the country are also changing the game. With these developments, independent schools face new challenges and obligations, as well as opportunities to bring greater transparency, equality, and safety to staff and students alike. Whether these changes have come to a state near you or are on the horizon, independent schools need to keep an eye on four major employment-related trends as they develop and revise policies and procedures.

Pay Equity and Salary History Bans

The basic principle of equal pay for equal work has been enshrined in federal law since the passage of the Equal Pay Act of 1963 (EPA). At the time, women earned approximately 60% of what men earned. While improvements have been made since the early 1960s—by 2017, women earned about 80% of what men earned—the rate of progress has slowed since 2001, and when other characteristics such as race and ethnicity are considered, the picture worsens.
While the EPA prohibits sex-based wage discrimination on the federal level, a growing subset of states and cities have pushed further by banning or limiting the use of salary history in hiring. The argument driving these laws is that asking about an applicant’s prior salary bakes in, continues, and exacerbates past pay inequities. This policy shift has proven popular; legislators in 21 states, cities, and counties—Alabama, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, Oregon, Vermont, Washington, Puerto Rico, Cincinnati, Kansas City, Philadelphia, New York City, San Francisco, and Albany, Suffolk, and Westchester counties in New York—have passed private employer salary history limits or bans, and more are likely to come.
It’s important for schools to:
  • Understand the salary history laws in their state, city, and county. If a school is located in one of the listed areas, it should remove salary history questions from application materials and train staff involved in the hiring process about acceptable versus prohibited questions.
  • Look for alternatives beyond salary history to find qualified applicants. In most cases, employers may inquire about applicants’ desired salary or expectations, though there may be reasons not to do so. In some instances, employers may be required to provide salary ranges to applicants during the hiring process, though schools can consider whether they wish to affirmatively provide such information.
  • Know how, if at all, your school is allowed to use past salary history if an applicant voluntarily discloses the information during the application process or you become aware of such information. State laws vary on this point, and employers should carefully document such disclosures.
  • Consider conducting a pay audit to evaluate the school’s compensation practices with the aid of experienced counsel. In addition to salary history bans, several states are enhancing their equal pay laws to apply to other protected classes and are limiting the factors employers can use to explain or justify pay differences between employees in similar or comparable jobs.

LGBTQ Protections

Another area where the law is in flux is protection for employees based on gender identity and sexual orientation. Although Title VII of the Civil Rights Act prohibits employment discrimination based on sex, federal courts have reached conflicting conclusions on whether sex includes gender identity and sexual orientation. With this uncertainty as a backdrop, many LGBTQ employees do not feel safe at work. According to the Human Rights Campaign Foundation’s 2018 report “A Workplace Divided: Understanding the Climate for LGBTQ Workers Nationwide,” 46% of LGBTQ employees report being closeted at work for a variety of reasons, and one in 10 have left a job because of a lack of acceptance at work. Conversely, an inclusive environment can make a workplace more attractive to potential employees—25% of LGBTQ workers have stayed at a job because of a positive environment.
Twenty-one states plus the District of Columbia have passed laws explicitly prohibiting discrimination based on sexual orientation and gender identity. Two other states interpret their general laws on sex discrimination to prohibit discrimination based on sexual orientation and gender identity. Moreover, hundreds of cities and counties have enacted similar protections on the local level. In some instances, cities and counties may provide protections for LGBTQ employees, even though the state itself does not.
It’s important for schools to: 
  • Understand the employment discrimination laws in your state, city, and county, and make sure that all hiring materials, policies, and handbooks comply with current law as well as your school’s mission and values.
  • Review employment and health care benefits to ensure that offerings are provided equally for opposite and same-sex partners and spouses.
  • Conduct workplace training on nondiscrimination policies, and incorporate these cultural competencies into the professional development and evaluation process.
  • Have a policy in place to support the transition of an employee, just as you would help a student, with a clear eye and focus on privacy and confidentiality.

Paid Family and Medical Leave

As the workforce continues to change and family care costs continue to rise, paid family and medical leave—or lack thereof—is receiving renewed attention. While the federal Family Medical Leave Act (FMLA) has been around since 1993, it only provides unpaid leave and does not cover all employees. There is no federal law that requires paid leave, and according to the National Partnership for Women and Families, only 17% of the workforce has access to such benefits.
While bipartisan talks have begun on the federal level, a growing minority of states has passed new paid family and medical leave laws or expanded prior programs. Currently, there are paid leave programs in California, Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Washington, and the District of Columbia. While some of these programs will not be operational for a few years, the plans share common themes. For example, the programs generally operate under an insurance model funded by payroll taxes, provide between four and 12 weeks of leave to bond with a new child or care for a family member’s serious health condition (with longer leave for the employee’s own serious health condition or disability in some cases), and offer various levels of wage replacement for employees while they are out on leave. In many cases, these programs cover leave for a more comprehensive array of reasons than those allowed under the federal FMLA, enable employees to access benefits sooner, and include smaller employers as well.
It’s important for schools to:
  • Evaluate all the unpaid and paid leave laws in your state, city, and county, as well as your obligations under federal law. While the programs mentioned here focus on paid family and medical leave, other laws mandate paid sick leave, leave for victims of domestic violence, and general PTO, in addition to laws mandating unpaid leave.
  • Learn about the funding mechanism if a school is located in an area with mandated paid family and medical leave. Determine if the program is funded by an employee tax, an employer tax, or a combination of the two.
  • Consult a local employment and benefits expert to determine how to best structure leave offerings based on current benefit structures, the requirements in an area, and how various obligations interact with one another.

Sexual Harassment

The #MeToo movement has taken the country by storm, leading to increased awareness and reporting of sexual harassment in the workplace. According to the Equal Employment Opportunity Commission—the federal agency tasked with enforcing Title VII’s prohibition on sex-based discrimination—charges filed with the agency alleging sexual harassment increased 13.6% from 2017 to 2018.
With this backdrop, states and localities have passed new laws to address and prevent sexual harassment at work. For example, in 2018–2019, Arizona, California, Connecticut, Delaware, Illinois, Maryland, New York State, New York City, Tennessee, Vermont, and Washington state passed new laws targeting sexual harassment. There are a few different approaches at work here—some states are passing bans or limits on nondisclosure agreements, others are banning mandatory arbitration in cases of sexual harassment, and others are instituting new sexual harassment policy and training requirements.
It’s important for schools to:
  • Evaluate the law in your area, particularly as it relates to nondisclosure agreements and mandatory arbitration in cases of sexual harassment. While federal courts have largely upheld arbitration clauses in employment agreements, some states are moving in the other direction when it comes to sexual harassment, and schools should carefully evaluate their policies in this area.
  • Review staff training protocols. If you are located in a state or city that requires sexual harassment training, there are likely government-provided training modules to help guide your program and ensure compliance. These resources can also serve as a jumping off point for schools in other states that want to be proactive in this area.
  • Take a broad view of safety culture in your school and assess your reporting mechanisms. Ideally, there will be multiple pathways for employees to report wrongdoing.
The workplace environment is changing on many fronts. To keep up, independent schools should keep an eye on their state capitols and city halls, and turn to experienced counsel to craft updated and compliant policies.

Readings & Resources

For an in-depth look, read these NAIS Legal Advisories.
Whitney Silverman

Whitney Silverman is assistant legal counsel and director of government relations at NAIS.