How same-sex marriage law affects district employment practices

The last few years have seen a significant shift throughout the country in laws relating to same-sex marriage. In 2013, the United States Supreme Court established the right to same-sex marriage for purposes of federal law, such as income tax laws [United States v. Windsor, 570 U.S. __ (2013)]. But the rights of same-sex spouses still depended on whether individuals were legally married under the laws of the state in which they resided. In June of this year, the Supreme Court held that states must recognize marriage between two people of the same sex [Obergefell v. Hodges, 576 U.S. __ (2015)]. Texas officials must now issue marriage licenses to same-sex couples. In addition, state and political subdivisions must recognize same-sex marriages performed here and in other states. 
For human resource professionals, the ruling in Obergefell means school districts must recognize the same-sex marriages of their employees. On a practical level, this means making employee benefits available on the same basis to employees in same-sex marriages as to employees in opposite-sex marriages. 

Limited policy implications

Few, if any, policy changes will be required in response to these decisions because most districts use the neutral term spouse in local policy and administrative materials. A terminology update is appropriate if gender-specific terms are used in a manner that might be interpreted as hostile to same-sex couples. For example, district materials that refer to a “husband’s” ability to take leave to care for “his” pregnant wife could be amended to refer to an “employee’s” ability to take leave to care for “the employee’s” pregnant spouse.
The TASB HR Services’ Model Employee Handbook for the 2015‒16 school year has been updated with gender-neutral terms. TASB Policy DECA (LEGAL) will be updated with gender neutral terms in Update 103.

Benefits implications

Health insurance. Districts must allow employees to enroll their same-sex spouses in health insurance benefits under the same terms as opposite-sex spouses. TRS has amended the eligibility criteria for enrollment in TRS-ActiveCare to comply with the Obergefell decision. Effective with the open-enrollment period for the 2015‒16 plan year, employees may enroll their same-sex spouses and other dependents in health insurance coverage. Details are available on the TRS Website.
Districts that do not participate in TRS ActiveCare should review their plan documents to ensure that same-sex spouses are eligible to enroll. In addition, some districts may need to conduct a special enrollment event so that employees can enroll same-sex spouses between now and the next open enrollment period.
Retirement. Since the Windsor decision, a qualified retirement plan has been required to treat a same-sex spouse as a spouse for the purpose federal tax laws relating to qualified retirement plans (see the Internal Revenue Service document Answers to Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law). For the most part, retirement benefits for school district employees are handled by TRS and TRS is responsible for ensuring that the plan complies with federal law. However, districts that offer supplemental or alternative retirement benefits, such as 403(b) or 401(k) programs, should ensure that they treat married same-sex partners as spouses under these programs. 
Leaves of absence. In March 2015, the Department of Labor issued new regulations defining “spouse” for purposes of the Family and Medical Leave Act (FMLA). Questions were raised about the applicability to these regulations in states such as Texas that did not recognize same-sex marriage. The Obergefell decision resolved any lingering doubts: Employees in same-sex marriages have the same FMLA leave rights as employees in opposite-sex marriages.
Eligible employees in Texas are now entitled to:
  • Take FMLA leave to care for a same-sex spouse with a serious health condition
  • Take qualifying exigency leave due to a same-sex spouse’s covered military service
  • Take military caregiver leave for a same-sex spouse
  • Take FMLA leave to care for a stepchild (child of employee’s same-sex spouse) regardless of whether the employee meets the in loco parentis requirement of providing day-to-day care or financial support
  • Take FMLA leave to care for a stepparent who is a same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee
State or local leave that is available to an employee based on a marriage relationship now applies equally to same-sex spouses. Most districts defined “immediate family,” for purposes of state and local leave, to include the employee’s spouse. Leave that is available to an employee based on a marriage relationship will vary by district. Consult district policy (DEC(LOCAL)) to determine which forms of leave may be implicated.


Districts should treat same-sex marriage the same as other marriages for purposes of documentation requirements. If the district does not normally ask for documentation of opposite-sex marriages, the district should not require documentation of same-sex marriages. Remember that Texas recognizes common law marriage. Under the Obergefell decision, the rules on common law marriage apply to same-sex marriages.

Religious objections

Same-sex marriage may evoke strong feelings among district staff, including religious objections to the notion that individuals of the same sex may legally marry. Employees may cite an objection to same-sex marriage as justification for refusing to carry out a job duty, such as processing a leave request or health benefits. 
The state’s Religious Freedom Restoration Act (RFRA) protects free exercise of religion, defined as “an act or refusal to act that is substantially motivated by sincere religious belief.” The RFRA also prohibits a government employer, such as a school district, from substantially burdening an employee’s free exercise of religion unless the burden is the least restrictive way of furthering a compelling governmental interest. In addition, Title VII requires a covered employer to make reasonable accommodations for the religious beliefs of employees.
District officials should approach requests for religious accommodations with an open mind and seek to achieve a mutually acceptable solution. Before denying a request for a religious accommodation, districts should seek legal advice from the district’s attorney.

Limited changes required

Texas school districts will have to change to accommodate the rights of employees in same-sex marriages. Fortunately, only limited changes are required to policies and benefit plans. Most of the required changes will involve changes to processes and procedures.

Proposed FLSA rule changes and the impact on schools

On June 30, 2015, the U.S. Department of Labor (DOL) issued its long-awaited proposed Fair Labor Standards Act (FLSA) regulations. The rule changes were prompted by a presidential memorandum dated March 13, 2014, to “update, modernize, and simplify” the “white collar” (i.e., executive, administrative, or professional (EAP)) exemptions.

Salary test provisions updated

Currently, the FLSA requires that to be exempt, employees must earn at least $455 per week, an amount that has been in place since 2004. The DOL has proposed increasing this to $921 initially and adjusting the amount annually using a fixed percentile of wages from data provided by the Bureau of Labor Statistics (BLS) or based on the Consumer Price Index (CPI). It is estimated that the minimum salary for 2016 would be $970 per week, or $50,440 per year for year-round workers.
The good news is that classroom teachers and academic administrative employees* (e.g., counselors, assistant principals, principals, curriculum specialists, and instructional coaches) are exempted from the salary level test (29 C.F.R. §541.303), so the change in regulations will have no impact on them. For other employees, including part-time professionals, the proposed salary level may result in their positions being reclassified as nonexempt because they no longer meet the salary level test. If this occurs, the affected employees would be required to track their hours and be subject to record keeping and overtime pay rules.

Same duties tests. The duties tests for the EAP exemptions did not change. However, the DOL is seeking comments to determine if these tests are sufficient. DOL is particularly looking for better ways to identify jobs currently deemed exempt where a disproportionate amount of nonexempt work is being performed. Based on the comments received, DOL may change the duties test when the final rules are published.

Potential impact on districts

Some administrators and professionals who are currently exempt, including part-time employees, may no longer meet the minimum salary test. For example, non-teaching professionals such as librarians, nurses, and speech pathologists who are paid at or near the minimum salary on the state minimum salary schedule may fall below the new salary requirement. Counselors who do not administer school testing programs, assist students with academic problems, and advise students concerning degree requirements may also be at risk.** For part-time positions, the same salary requirement applies.
Districts will need to review exempt employee pay, paying particular attention to part-time professionals to determine if they meet the new salary level test. If not, pay will need to be adjusted or those jobs will be nonexempt and provisions for tracking hours and paying overtime will need to be put in place.

Preparing for the new rules

The DOL is taking comments on the proposed rules until Sept. 4, 2015, and is expected to issue final rules sometime in 2016. There is usually a window of time provided for employers to reach compliance once the final rules are published, so it is possible these rules will go into effect during or before the 2016‒17 school year. This time frame will give school districts a chance to plan for any required salary adjustments during the regular budget development period and implement timekeeping requirements as needed.

HR Services is developing more guidance that will help districts evaluate current salaries according to the weekly measures required by the proposed rules. We will continue to monitor information provided by the DOL and provide additional information when the final regulations are released. Please continue to watch HR Exchange and the HR Services Web page for more information. Follow us on Twitter (@TASBHRS) to receive notice of updates.

*Mid-May update: Academic administrative employees are not technically exempted from the salary threshold test. However, the FLSA only requires they be paid at least the standard salary threshold, or on a salary basis which is at least equal to the entrance salary for teachers in the educational establishment in which they work. So, as long as an academic administrative employee earns at least as much as a starting teacher in your district, they meet this salary threshold.)

**Information was updated to clarify that the impact of the new rules on counselors is dependent upon actual job duties and exemption test used.

HR departments, by any name, drive district (and student) success

In the 1970s and 1980s, the term Personnel Department morphed to be known as the Human Resources department. In theory, this term was meant to be “friendlier” and a better reflection of the department’s role. These days we are seeing another evolution of titles, with companies such as Google referring to their HR leader as vice president of People Operations, and Walmart calling its department the Global People Division.
No matter what you might call it, HR departments in schools are a hidden driver of a school district’s success. They directly impact the recruitment, hiring, and retention of qualified teachers and campus leaders.
To learn more about what motivates and drives HR departments in the K-12 public education system, Emily Douglas McNab and Allison Wert shared the results of a survey they conducted for AASPA’s 2015 Best Practices and Perspectives magazine. The survey led to nearly 700 responses from HR professionals about their work experiences, background, and motivation.
One interesting highlight the study uncovered was that the majority—74 percent—of HR leaders in education began their career as teachers and worked their way up through the ranks. However, only 40 percent of HR staff, including HR leaders, spent time at the campus level.
While it may seem as a potential disconnect, this diversity is a positive thing for district HR departments. By working as a team and sharing knowledge, HR staff can implement best practices in HR as well as keep the focus on what is best for students. An HR leader with campus experience can help ensure that decisions are made that will benefit students. However, they should also listen and learn from those HR professionals that have HR experience outside of education.
Another insight showed that though many public and private organizations are looking at creative names for their HR departments, school districts seem to prefer to stay with the status quo. Nearly 84 percent of respondents in the survey stated that they have no desire to change the name of their department.
The study also sought to uncover what motivates HR leaders and staff in public education. Interestingly, only 17 percent of HR professionals responded that their primary motivator is to impact students. The number one response, given by 65 percent of HR professionals, was that employee growth is the primary motivator.
As you might expect, former teachers and campus administrators now in the HR office responded differently: Forty-three percent of former teachers and 56 percent of former campus leaders listed student impact as their primary motivator.
Student impact was the leading factor that drives HR decision making, with budget being a close second.
HR departments in education are in a unique situation in that while they are tasked with serving the campus staff, teachers, and administrators, they must remain cognizant of the impact they ultimately have on the student. HR leaders would be well served to include student impact as a main priority or goal for the department.
Human resources, talent management, people operations. It turns out that for a school district, what the department is called is considerably less important than the work of those who support the teachers, leaders, and ultimately the students in a school district. 

The ways to reward employees go beyond pay increases

With limited budgets, school districts are looking for creative ways to reward employees. State funding was increased this year, but only enough to bring state funding levels to 90 percent of the 2011 amount. In addition, school districts are required to pay an additional 1.5 percent contribution to employees’ retirement.
With the uptick in local property values, some districts are able to provide increases to their current employees. In May, TASB HRS reported that 80 percent of districts completing our prospective salary increase survey would provide a modest pay raise for the 2015‒16 school year (an average of 2.2 percent).
School districts are not alone in their desire to find new ways to reward employees. Most private sector companies use employee recognition programs to encourage employees to meet organizational goals. In May, WorldatWork released a new survey, Trends in Employee Recognition. This survey contains a mix of private sector, both privately held and publically traded; nonprofit/not-for-profit; and public sector employers. For the last two years, the top five recognition programs have not changed:

  1. Length of service (87 percent)
  2. Above-and-beyond performance (76 percent)
  3. Programs to motivate specific behavior (51percent)
  4. Peer-to-peer recognition (48 percent)
  5. Retirement (34 percent).
So how do districts reward employees without increasing the payroll budget?
Hutto ISD decided to change the workplace culture by improving working conditions. Superintendent Douglas Killian took a vested interest in changing the culture and led the change. Killian met with campus leadership on a regular basis and would make trips to the campuses. Central office staff would push around a snack cart at various campuses. This provided time for campus staff to meet and talk to central office staff in a less formal way, fostering better communication. The above examples were of relatively little cost to the district, and created goodwill between the administrators and campus staff.
By building a culture of recognition you can align employees to the achievement of district goals and organizational success. Recognition draws special attention to employee actions, efforts, behavior, and performance, and provides a nonmonetary means of rewarding good performance. Below are a few examples of ways to foster recognition in your district.
  1. Create recognition events and make other opportunities for people to share their success stories and anecdotes. Encourage everyone to share their appreciation publicly and frequently at team meetings.
  2. Post a list of accomplishments on the wall or in an internal blog or communication.
  3. Ask for employee of the quarter nominations and acknowledge top performers publicly with awards or gift cards.
  4. Use social media and employee blogs as a platform for employee recognition.
  5. Put your work-life benefits (e.g., workplace flexibility, culture, community involvement) in writing, so employees can easily access and understand them.
(Editor’s note: WorldatWork is a nonprofit human resource association.)

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2015‒16 Superintendent Salary Survey launched

School district superintendents were e-mailed the TASB/TASA Superintendent Salary Survey invitation on July 21. The survey takes a comprehensive look at the compensation and benefits of Texas’ top school executives. The due date for Superintendent Salary Survey data is Aug. 28.
Make the most of your HR Services membership by taking part in all of our salary surveys. All member districts have access to DataCentral, which puts valuable data in your hands. When you participate, you can use DataCentral to create custom market comparison reports with neighboring districts, districts of the same size, etc.
Mark these upcoming salary survey dates in your calendar:
Survey E-mail Invitation Due Date
 Superintendent July 21 Aug. 28
 District Personnel Sept. 1 Oct. 9
 Extra-Duty Stipend Oct. 27 Nov. 20
Contact us at 800.580.7782 or if you have any questions about the surveys.

Handguns prohibited signs updated

Effective Jan. 1, 2016, HB 910 of the 84th Regular Session of the Texas Legislature requires districts that want to pursue trespass charges specifically relating to openly carried handguns to post notice “in a conspicuous manner clearly visible to the public at each entrance to the property.” The text prescribed by Texas Penal Code 30.06 (trespass by license holder with a concealed handgun) was updated and a new posting under 30.07 (trespass by license holder with openly carried handgun) was created. As a result, districts with the current TASB poster should replace the existing sign and post a second sign if the district intends to pursue these trespass charges.

Both posted signs must  include text in contrasting colors with block letters at least one inch in height in both English and Spanish. TASB HR Services posters designed to meet these specifications are available for purchase in the TASB Store.

These posters can only be displayed on buildings or grounds on which a school-sponsored activity takes place and should not be displayed on the perimeter of district property. Effective Sept. 1, 2015, SB 273 prohibits posting of signs under 30.06 on the perimeter of the property. Under the new legislation, districts may be subject to a civil penalty of $1,000–$1,500 for the first violation and $10,000-$10,500 for the second or subsequent violation.

Additional information can be found in the Texas School Law eSource paper “Firearms on School District Property” In the Community Relations section.

Register early to ensure your spot in 2015–16 training

The schedule for our Austin training sessions has been posted on the HR Services Training Web page. Registration for all events is available so you can plan your HR professional development for the upcoming year. Additional training opportunities and registration for our webinars and ESC training will be posted soon.

HR Extras

DOL raises the bar on independent contractors

On July 15, 2015, the U.S. Department of Labor (DOL) issued an Administrator’s Interpretation (AI) that narrowed the definition of an independent contractor. This interpretation is significant because it shifts the focus from the degree to which a business controls an individual’s work to the economic realities test. When determining if a worker is an employee or an independent contractor, the interpretation requires employers to use the six factors of the “economic realities” test as a guide to determine if a worker is economically dependent on the employer. When workers are economically dependent on a particular employer, they are, in effect, “employed,” and should not be treated as an independent contractor.
DOL cautioned against using these factors as a checklist. Each factor should be analyzed in relation to one another and no factor should be given more weight than the others.
The DOL economic realities test factors are as follows:
  • Is the work an integral part of the employer’s business?
  • Does the worker’s managerial skill affect his or her opportunity for profit or loss?
  • How does the worker’s relative investment compare to the employer’s investment?
  • Does the work performed require special skill or initiative?
  • Is the relationship between the worker and the employer permanent or indefinite?
  • What is the nature and degree of the employer’s control?
The full text of the DOL Administrator Interpretation is available on the DOL Website.

Symposium on developing human capital management systems in October

If you want to learn how to transform your district’s HR operations through an improved human capital management system, an upcoming symposium will provide you with the help you need.
The Texas Center for Educator Effectiveness (TxCEE), TASB HR Services, and the Texas Association of School Personnel Administrators (TASPA), have teamed up to present Optimizing Educator Effectiveness: A Multifaceted Approach. The symposium takes place on Oct. 27 and 28 at the San Marcos Embassy Suites, 1001 E. McCarty Lane, San Marcos.
Discussion topics include stakeholder engagement, teacher and principal evaluation, student growth measures, professional development on the job, new compensation models, and data management systems. Participating districts include Austin, Houston, Dallas, Pharr-San Juan-Alamo, Lytle, Anderson-Shiro, and Southside.
The symposium costs $250 and certified educators earn CPE credits for attending. The ESC Region 18 Website includes important information you need to know to set yourself up to register as well as the registration form.

Texas Education Human Resources Day set for Oct. 14

Gov. Greg Abbott has proclaimed Wednesday, Oct. 14, 2015, Texas Education Human Resources Day. This is the sixth year school districts and the public have been encouraged to acknowledge the hard work of all human resource department staff members.
TASB HR Services has posted and will soon e-mail customizable certificates of appreciation and a sample board resolution to superintendents’ secretaries and district public relations staff in an effort to help districts honor their HR departments.
The Texas Association of School Personnel Administrators (TASPA) spearheaded the effort to set aside one day each year to recognize the efforts of human resources staff.

Most in demand jobs in the U.S. are skilled trades jobs, once again

Skilled trades jobs are the most difficult to fill in the U.S., according to ManpowerGroup’s annual Talent Shortage Survey. It is the sixth consecutive year skilled trades topped the list of hardest to fill job vacancies. The skilled trade job category includes plumbers, HVAC technicians, and mechanics, to name a few.
Teachers also ranked among the top five in 2015. In fact, four of the top five most in-demand jobs can be found in school districts.
  1. Skilled trades
  2. Drivers
  3. Teachers
  4. Sales representatives
  5. Administrative professionals
The survey revealed that nearly one-third of U.S. employers (32 percent) reported difficulties filling job vacancies due to a shortage of talent.

Base salaries expected to hold steady in 2016

U.S. employees can expect an average base salary increase of 3.1 percent in 2016, up just slightly from the raises most received this year, according to a new WorkatWork survey. Most major job categories can expect this increase.
There has been little change in terms of upward pressure on wages, hence the continued limited growth in salary budgets. Compensation experts predict that at some point true unemployment (which includes individuals who have stopped looking for work) will fall to a level low enough to begin putting upward pressure on wages. With the tepid post-recession recovery, accelerated wage growth is not likely yet.
Top performers can expect higher-than-average merit increases, while low-rated performers are likely to see no or negligible increases in base pay.

Q&A: Understanding assault leave

Q: When should district employees be placed on assault leave?

A: All school district employees who are injured in a physical assault while performing their regular duties are entitled to paid assault leave for up to two years from the date of the assault to recover from their injuries. Assault leave can only be used for physical injuries, not psychological conditions. Because assault leave is a special type of work-related injury, payment of benefits must be coordinated with workers’ compensation.
When an employee requests assault leave, his or her request should be granted and an investigation should be conducted. If the incident is determined to be an assault, the employee remains on assault leave for the number of days necessary to recover from the injuries sustained in the assault.
If the investigation determines that the incident that caused the injury was not an assault, any missed time would be covered by the employee’s accumulated leave (if available) or by workers’ compensation benefits, if they apply.
To qualify for assault leave, the employee must have suffered some bodily injury and missed work. A bodily injury is defined as, “physical pain, illness, or impairment of physical condition.” [Texas Penal Code §1.07(a)(8)] Bodily injury can occur with even minor physical contact.
Unless a doctor indicates that returning to work would worsen the injury or that additional days would help the healing process, assault leave ends when the employee is able to perform his or her job while complying with the doctor’s restrictions. That means an employee can return to work even though continued therapy may be needed.
For more information about assault leave, see the Leaves section of the HR Library.