FMLA rules for instructional employees

by April Mabry 

Q: Are instructional employees eligible for intermittent family medical leave?

In recognition of the need to preserve the instructional program, the Family and Medical Leave Act (FMLA) regulations provide special rules for instructional employees needing intermittent leave for planned medical treatment for themselves or a family member. As with any other employee, the district must grant intermittent or reduced-schedule leave to instructional employees because of a medical necessity.

If the leave for the planned treatment is more than 20 percent of the total number of working days over the period the leave would extend, the district may require the instructional employee to choose between the following:
  • Temporarily transferring to an alternative position with the same pay and benefits that would better accommodate the need for leave.
  • Taking leave for the duration of the planned treatment or care (a block of time) as long as the block of time does not begin earlier than the first day that leave is needed and does not extend beyond the last day that leave is needed.
To invoke this rule, the district must provide the employee with the option to transfer to another position. The employee cannot be forced to take the leave as a block of time if the district does not offer the employee an opportunity to transfer to an alternate position.

Instructional employees who are absent 20 percent or less during the foreseeable leave period cannot be subject to transfer to an alternative position.

Instructional employee defined
The FMLA regulations define an instructional employee as an individual who provides direct instruction to students and whose primary job is to teach and instruct students in a class, small group, or individual setting. This may include teachers, coaches, driving instructors, and special education assistants such as interpreters. It does not include administrators, counselors, psychologists, curriculum specialists, or other professional support personnel.
Transfer rules for non-instructional employees

Transfer provisions only apply to situations where the need for leave is foreseeable because of planned medical treatment. The district may require a non-instructional employee to temporarily transfer to an available alternative position for which he or she is qualified that better accommodates the need for intermittent or reduced leave schedule. If the need for intermittent leave is due to a chronic, reoccurring condition that is not predictable, the transfer provision would not apply.
When the district requires the non-instructional employee to transfer to an alternative position, the transfer may only occur during the period of time that the intermittent or reduced leave schedule is required. The alternative position does not need to have equivalent duties; however, the pay and benefits must be the same. In addition, the transfer may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave schedule.
Additional information on family and medical leave can be found in the HR Library and The Administrator’s Guide to Managing Leaves and Absences, which is available for purchase in the TASB Store.

Identifying and avoiding the W-2 phishing scam

By Zach DiSchiano

A fraudulent phishing scam has circulated throughout districts in Texas and across the country in recent months, exposing private W-2 information of employees in several school districts.

It happens when someone impersonating a superintendent e-mails a payroll or human resources employee requesting copies of staff W-2 forms.

In many cases, the contacted employee is not someone with whom the superintendent interacts on a frequent basis. These employees are more likely not to question a request from someone in a position of power and simply surrender the requested information with little or no pushback.

The e-mails being circulated now are not like ridiculous spam messages of years past. There are no flashing red lights informing you of a computer virus, or a plea to send $25,000 to someone with a guarantee they will triple your investment in weeks. The recent phishing e-mails look like legitimate requests for information and may even appear to be sent from the superintendent’s e-mail address. This is a premeditated, calculated attempt to secure private employee information, including Social Security numbers. According to an alert issued by the Internal Revenue Service (IRS), some organizations that have been victimized in the past are being targeted again.

Since the beginning of 2017, at least five districts in Texas have fallen victim to the cyberattack. Many other districts around the country have reported similar incidents, and no one has been charged or brought into custody. Districts should be aware they can be targeted regardless of district size or location and should take steps to prevent this scam from happening to their staff.

Guidance on handling situations where anyone, including a superintendent, requests sensitive information from a district employee is listed below:

  1. Never send out confidential personal information of any employee.
  2. If you feel like the request is somewhat suspicious, contact a supervisor or IT director to double-check the validity of the e-mail.
  3. Review the sender’s address and make sure it is the exact e-mail of the person it’s supposed to be sent from.
  4. If your district is a member of the Risk Management Fund (RMF) Property and Liability program and you believe your organization has fallen victim to this scam, contact TASB Risk Management at 888.920.5130, ext. 2893. If you believe your organization has fallen victim to this scam, contact the IRS directly, as indicated in their press release so steps can be taken to protect employees from tax-related identity theft.
For more information on how to recognize and prevent a phishing scam, review TASB Risk Management’s phishing FAQs or download this customizable tip sheet for your organization.

Bus driver shortages: Where are we now?

by Tracy Morris
In many communities across the state, there are school buses draped with “now hiring” banners screaming for attention.  It’s pretty difficult to find a district that doesn’t need at least one more bus driver. In December 2015, we posed the question, “Is relief on the horizon for bus driver shortages in Texas?”  The answer then was no, even as the oil and gas boom ground to a halt. The New York Times reports that Texas, the most productive oil-producing state, saw a loss of 98,000 oil jobs from the 2014 peak, but have bus driver vacancies been filled, and has the rocketing pay increase slowed? As oil prices rebound, but not nearly as quickly as they went bust, what might we expect?
A 2015 School Bus Fleet magazine survey found that only 6 percent of national school bus contracting companies reported having enough drivers. The same survey in 2016 found that some progress had been made, with 11 percent of national school bus contracting companies now reporting they have enough drivers. However, that improvement was seen in those experiencing only moderate shortages rather than a reduction in severe shortages. In 2015, 28 percent of the respondents indicated they were at severe shortage levels, and by 2016 that had actually increased to 31 percent. 

Pay trends

Between 2012–13 and 2014–15, there was a clear correlation between increased bus driver pay and ESC regions in oil-rich areas, based on responses to the TASB Salary Survey.  During that time, the five ESCs with the biggest increases in their districts’ median bus driver pay saw an average increase of $1.66 per hour, compared to just $0.65 per hour for the remaining regions of the state. 
None of the biggest movers from 2014–15 appear in the top five movers of 2016–17.  The ESCs realizing the biggest increases in their districts’ median bus driver pay are 16, 5, 4, 8, and 9.  Bus driver median pay in these five regions increased $1.76 per hour on average, $0.10 per hour more than the largest increases seen during the oil boom. During this time, the rest of the state saw an average increase of just $0.60 per hour for bus driver pay.  
Bus Driver Median Pay Increase
201213 to 201415 (2 yr period)—Top 5 Regions
Region 18 Midland +$1.26
Region 3 Victoria +$1.27
Region 17 Lubbock +$1.40
Region 15 San Angelo +$1.92
Region 14 Abilene +$2.45
Bus Driver Median Pay Increase
201415 to 201617 (2 yr period)—Top 5 Regions
Region 16 Amarillo +$1.33
Region 5 Beaumont +$1.36
Region 4 Houston +$1.62
Region 8 Mount Pleasant +$2.02
Region 9 Wichita Falls +$2.45

In the past two years, districts statewide provided a median pay increase of 5 percent to auxiliary employees, while almost half of regions (9) saw an increase in bus driver pay of greater than 5 percent. The smallest group consisted of two regions where pay increased by less than 3 percent. The remaining regions (9) saw increases between 3 and 5 percent.
For nonexempt jobs, like bus driver, one of the biggest determining factors for getting someone in the door is starting pay. The past three years saw some big moves there as well. The areas realizing the biggest increases in their districts’ median minimum bus driver pay are Regions 1, 13, 12, 15, and 17. ESC 15 leads the group with an increase of $2.99 per hour over the two-year period.
Bus Driver Median Minimum Pay Increase
2014-15 to 2016-17 - Top 5 Regions
Region 1 Edinburg +$0.85
Region 13 Austin +$1.13
Region 12 Waco +$1.19
Region 17 Lubbock +$2.60
Region 15 San Angelo +$2.99

Other considerations

It doesn’t look like the effort to increase pay is over. While improving wages alone is important, it isn’t always the deciding factor for an applicant to come or not, and it usually isn’t the reason most employees choose to stay or go. Districts are looking at other ways to enhance their offerings to employees.
Spring ISD announced in early February that their board of trustees approved an increase in bus driver pay for 2017–18 to $16.50 from the current $15.12 per hour, but the district also plans to reduce day care fees by half for drivers using the on-site day care center. Other districts have also turned to looking at the salary more holistically than simply increasing wages. Many districts have identified ways to provide drivers with more hours than the typical split shift offers, creating dual roles to serve other business needs of the district. Some have even extended the working calendar by having bus drivers fill the roles of maintenance worker and custodian during the summer. Offering referral bonuses, perfect attendance incentives, and vacation pay, are other ways some districts are combating driver shortages. Finding other ways to serve the needs of the local workforce is paramount to recruiting and retaining bus drivers.

HR Extras

Facebook now allows employers to post jobs from company page

There's now another place you can post job vacancies online—your district’s Facebook page.

It’s not a new website, but rather a new, free tool for companies to use to further improve their presence on Facebook. Simply click the ‘jobs’ tab on your corporate Facebook page and follow the prompts to publish an opening.

The interface is simple and easy to use, especially for those already with Facebook pages. There’s no learning the navigation of a new job site. It’s still Facebook, and you compose a job posting just the same as you would post a status update, with a few more details and blanks to fill. To see how it works, check out SHRM’s video here.

This new tool doesn’t replace sites like LinkedIn or Indeed, but it's a nice tool to have and another outlet to use when you need to fill jobs.

Senate passes educator misconduct bill

The Texas Senate unanimously passed Senate Bill 7 (Bettencourt) on Wednesday, March 8, which addresses improper relationships between educators and students. The bill would create criminal liability for superintendents and principals who fail to report any instance of an educator who is terminated when there is evidence that misconduct with a student occurred.
Sen. Paul Bettencourt (R-Houston) said many teachers involved in these situations remain in schools because administrators “pass the trash.” The bill would allow administrators who fail to report to be charged with a Class A misdemeanor or a state jail felony if they intentionally do not report an incident.
The Senate approved an amendment by Sen. Van Taylor (R-Plano) that would revoke state pensions from educators who are found guilty of continuous sexual abuse of a child, an improper relationship between an educator and student, or sexual assault. The amendment does provide for returning pensions to educators who are found to be innocent or whose convictions are overturned. The bill now heads to the House for consideration in committee.