Publishing EEO notices

by April Mabry

Q: Where are districts required to publish or post equal employment opportunity (EEO) notices?

A: Districts are required to provide EEO notices (i.e., nondiscrimination statements) for applicants, employees, students, and program participants. Under some federal laws, districts are required to display work-site posters and include a statement on vacancy notices, applications, and recruiting materials.

District administrators often ask whether they are required to purchase advertising from certain private publications stating their EEO status. Few, if any, Texas districts are legally required to publish their EEO notices beyond their local community.

Texas law does not require school districts to establish affirmative action programs. The primary source of affirmative action requirements is a group of federal laws applicable to federal contractors. The test for whether an entity is a federal contractor subject to Office of Federal Contract Compliance Programs jurisdiction is as follows:

(1) The entity holds one or more federal contracts or subcontracts for supplies or services;

(2) The value of the contracts or subcontracts exceeds $50,000; and

(3) The contractor has 50 or more employees.

Few Texas districts meet the test for federal contractors. However, most Texas districts receive federal funding or federal grants directly from the U.S. Department of Education or through the Texas Education Agency. As recipients of financial assistance from the U.S. Department of Education, districts are required to include a statement of nondiscriminatory policy in any bulletins, announcements, publications, catalogs, application forms, or other recruitment materials that are made available to participants, students, applicants, or employees.

A more complete explanation of the requirements and exceptions regarding publication of EEO notices can be found in TASB Legal e-Source and on the Office of Civil Rights (OCR) Website. A complete list of required work-site notices for employees can be found in the HR Library.

The ins and outs of workers' compensation

by Karen Dooley

Providing workers’ compensation benefits for employees is required by state law. Employees who suffer a work-related illness or injury must be given necessary medical treatment and may receive Temporary Income Benefits (TIBs) during a sustained absence. The employee does not need to miss work to be entitled to medical benefits. Employees may be eligible for benefits up to a maximum of 401 weeks.

Workers’ compensation is not a form of leave. While receiving workers’ compensation benefits, an employee is responsible for the payment of health insurance premiums unless other leave benefits are running concurrently. Protections under the Americans with Disabilities Act (ADA) also may apply.

Listed below are types of leave that may run concurrently with workers’ compensation benefits:

  • Assault leave
  • Family and medical leave (FML)
  • Local leave
  • State personal leave
  • State sick leave
  • Temporary disability leave

Offsetting leave

Workers’ compensation rules prevent employees from receiving more than 100 percent of their pre-injury average weekly wage when the employee elects to use paid leave while receiving workers’ compensation TIBs.

By board policy, a district can adopt an offsetting policy that limits the amount of paid leave employees can use while receiving workers’ compensation TIBs to fractional amounts. The fractional amounts of leave combined with TIBs will equal the pre-injury weekly wage. Districts should contact their workers’ compensation carrier for the TIBs rate to ensure that the offset is the correct amount.

If the district has not adopted an offset policy, the employee has the following choices:

  • Use available leave and postpone TIBs until leave is exhausted or to the extent paid leave does not equal the pre-illness or pre-injury wage
  • Receive TIBs and forego the use of available paid leave

However, if a district requires the employee to use paid leave for an absence because of a work-related illness or injury, then he or she also will be eligible to receive TIBs at the same time. The combined benefits could be greater than the pre-injury wage, thereby providing an incentive to remain out of work as long as possible.

Because the election to use paid leave can impact the amount of workers’ compensation income benefits received, it is important for districts to document the employee’s choice to use or not use paid leave for each claim. Sample forms to document the employee’s election to use paid leave are available online in the Leaves section of the HR Library.

Family and medical leave

Any workers’ comp absence that results in inpatient care or more than three days of absence with continuing treatment will qualify as an FMLA serious health condition. FMLA provides greater rights to job restoration and continuation of health insurance contributions than workers’ comp. Therefore, it is important to determine an employee’s eligibility and comply with federal regulations to designate the absence, including providing notice in a timely manner.

The district can use the medical certification received for workers’ compensation purposes to qualify the absence for family and medical leave (FML). It is not necessary to require duplicate information from the employee’s health care provider as long as the information on hand is complete and sufficient.

Federal regulations address the interplay of FMLA and modified duty programs. [29 C. F. R. § 825.220(d)] Districts can follow workers’ comp rules and offer an employee a modified-duty position when the health care provider certifies the employee is released to return to work with limitations. Under FMLA, the employee is permitted, but not required, to accept the position and continue on FML. However, under workers’ comp rules, refusal of modified duty may result in the loss of income benefits.

If the employee accepts the modified assignment, the time spent in the assignment does not count toward the employee’s FML entitlement and the employee’s right to restoration to the same or equivalent position remains in effect as long as the employee is in the modified assignment. If the duration of the employee’s modified duty assignment is not limited, the employee’s right to restoration expires at the end of the 12-month leave year defined in Policy DEC (LOCAL).

Coordination of assault leave

Districts are required to coordinate assault leave and workers’ compensation benefits (Texas Education Code § 22.003(b)). Workers’ compensation income benefits are the first source of paid benefits for the employee and supplemented by the district with direct leave payments. The combined total the employee receives should be equivalent to the employee’s pre-injury weekly wage. If the district fails to offset and pays the employee at 100 percent of the preinjury wage, the workers’ comp carrier cannot adjust TIBs.

As a result, the employee would receive full-day leave payments and TIBs. In some cases, this will be equivalent to 175 percent of the preinjury wage. (Texas Department of Insurance Workers’ Compensation Appeals Panel Decision 06173-S).

Compensation for medical care

An employee is entitled to compensation for time spent seeking medical care on the day a work-related injury occurs. This includes time spent traveling to and from the appointment and waiting for treatment. The employee also is entitled to compensation any time the district or the district’s agent requires the appointment.

The employee’s time is not compensable if the appointment is required at the direction of the employee’s physician or health care provider, the appointment relates to a non-work illness or injury, or the appointment is required before an employee may access paid sick leave.

Additional information about workers’ compensation benefits and coordinating leave is available in The Administrators’ Guide to Managing Leaves and Absences. Member districts can also access a recorded webinar, Coordinating Leave and Workers’ Compensation Benefits through the HR Services training web page

Frequently asked questions: district-provided clothing

by Tracy Morris

Each year, school districts across the state give employees shirts emblazoned with the district logo to wear throughout the year, sometimes on a specific day of the week. In addition, coaches receive new gear, including shoes, sweatshirts, pullovers, and more. Are these items taxable income to the employee, even if it’s just a t-shirt?

Q: What should we know before giving gifts or clothing to employees?

A: Before a school district spends public funds on a gift to employees, it must consider the state constitutional prohibition on gifts of public funds. In 1996, the Texas Attorney General clarified that plaques, flowers, and other small gifts may be allowable expenditures if the school board first determines through formal board action that these items serve a legitimate public purpose, such as increasing employee morale or productivity. Gift cards or debit cards are probably not appropriate for employee gifts as they are readily convertible to cash and might have the appearance of a cash bonus in violation of the prohibition on gift of public funds. In addition, cash or cash equivalent gifts from a district must be reported as taxable income. Other gifts may also be reportable taxable income if not covered by a de minimis benefit exception.

Q: What is a de minimis benefit?

A: In general, a de minimis benefit is one that, considering its value and the frequency with which it is provided, is so small as to make accounting for it unreasonable or impractical. De minimis benefits are excluded under Internal Revenue Code section 132(a)(4) and include items which are not specifically excluded under other sections of the Code. These include such items as:

  • Controlled, occasional employee use of photocopier
  • Occasional snacks, coffee, doughnuts, etc.
  • Occasional tickets for entertainment events
  • Holiday gifts
  • Occasional meal money or transportation expense for working overtime
  • Group-term life insurance for employee spouse or dependent with face value not more than $2,000
  • Flowers, fruit, books, etc., provided under special circumstances
  • Personal use of  a cell phone provided by an employer primarily for business purposes

In determining whether a benefit is de minimis, you should always consider its frequency and its value. An essential element of a de minimis benefit is that it is occasional or unusual in frequency. It also must not be a form of disguised compensation.

Whether an item or service is de minimis depends on all the facts and circumstances. In addition, if a benefit is too large to be considered de minimis, the entire value of the benefit is taxable to the employee, not just the excess over a designated de minimis amount. The IRS has ruled previously in a particular case that items with a value exceeding $100 could not be considered de minimis, even under unusual circumstances.

Q: If we give employees a shirt to wear does it meet the de minimis exception, or is it a taxable benefit?

A: It depends, but in most cases, the answer is yes, it is a taxable benefit. For clothing to not be a taxable benefit, the clothing must be distinctive, specifically required by the employer, not worn away from work, and not be suitable for taking the place of regular clothing. Therefore, the cost of buying and maintaining a shirt with the district’s decal worn by the employee at the request of a supervisor, for example a Friday spirit shirt, is taxable because these clothing items are appropriate for personal use.

Q: What could qualify clothing as a de minimis fringe benefit?

A: Items designed for a one-time usage are considered de minimis and are not a taxable benefit. In determining whether a benefit is de minimis, consider its frequency and its value. An essential element of a de minimis benefit is that it is occasional or unusual in frequency.

Q: What’s the best practice for providing uniforms to employees?

A: Districts providing full or partial uniforms to employees should require employees (in writing) to wear the uniforms at work and prohibit them from wearing them off-duty. In this case, the clothing is not a taxable benefit.

Examples of clothes and upkeep excludable from income and not taxable to the employee because they aren’t suitable for everyday wear are in the realm of firefighter uniforms, law enforcement officer uniforms, and USPS worker uniforms. Additionally, the cost of protective clothing required, such as safety shoes or boots, safety glasses, hard hats, and work gloves, are not taxable.

Q: What about coaches? Is the clothing they’re provided a taxable benefit?

A: In most cases, clothing provided by the district is a taxable benefit. Clothing items, including those with district logos, are typically appropriate for personal use and suitable for everyday wear.

However, UIL rules (see Section 481) allow a booster club to provide a coach gifts valued up to $500 annually in appreciation for their service as a coach, as long as the gift is not a bribe  

 

HR Extras

IRS to send ACA penalty letters by end of 2017

The IRS will begin notifying employers before the end of the year of their potential accountability for failing to provide health coverage compliant with the Affordable Care Act (ACA).

In early November, the agency issued questions and answers (see items 55-58), which informed companies and organizations of its intent to notify applicable large employers (ALEs) of their potential liability for an employer shared responsibility payment, if applicable, in connection with the 2015 calendar year. It also explains the notification process and how employers can appeal the penalty determination.

The IRS posted a sample Letter 226J, Preliminary Calculation of the Employer Shared Responsibility Payment, and an explanation of Letter 226J, which describes how ALEs should respond to this letter.

SHRM also has an informative article on the subject on its website.

Temporary Protected Status designation for Nicaragua, Haiti terminated

In November, the U.S. Department of Homeland Security (DHS) announced its decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua and Haiti.

The termination for Nicarauga will be delayed for an orderly transition and will go into effect January 5, 2019. The termination of TPS for Haiti will be effective July 22, 2019. This will allow individuals with TPS to seek an alternative lawful immigration status in the United States, if eligible, or, if necessary, arrange for their departure.

The DHS also is considering the removal of the TPS designation for Honduras, but has yet to make a final decision. Consequently, the designation for Honduras will automatically be extended for six months from the present January 5, 2018, date of expiration.

TASB Legal Services updates Employee Free Speech Rights article

TASB Legal Services recently updated the School Law eSource article, Employee Free Speech Rights. This article addresses employees’ right to personal expression at work, at home, and online. A summary chart of employee’s rights is included.

 

Inside HR Services

Take our latest Health Insurance Premiums survey

Participate in our latest Health Insurance Premiums HR survey covering premiums, contribution amounts, and cost-sharing arrangements. More than 300 districts have already participated. Your district must participate to get the results. Visit DataCentral and go to the HR Data page to take the survey. 

Extra-Duty Stipend Survey closing soon

Be sure to submit your district’s 2017–2018 data for the Extra-Duty Stipend Survey so results are available to you for comparison in DataCentral. Visit our website to download the survey today. The deadline is December 8.

2017–2018 Teacher/District Personnel Salary Survey data in DataCentral

New 2017–2018 Teacher/District Personnel survey data is now available in DataCentral for all HR Services members. You can use your district’s reported teacher survey data to create custom market reports on salaries, teaching field stipends and incentives (e.g., math and science), and more. In addition, District Personnel (nonteacher) pay data is also available for more than 130 common school district jobs.

Join us at TASPA/TAEE Winter Conference

Please stop by the HR Services table at the Texas Association of School Personnel Administrators (TASPA)/Texas Association for Employment in Education (TAEE) 2017 Winter Conference on December 13–16. Staff will be there to greet you and our publications and posters will be on display. We also invite you to come to the following sessions presented by HR Services’ staff:

Thursday, December 14

10 Compensation Practices to Avoid

10:15 a.m.

Presenters: Luz Cadena and Matthew Levitt

HR Hot Topics

1:30 p.m.

Presenters: Amy Campbell and April Mabry

Independent Contractor or Employee? Does it Really Matter?

2:45 p.m.

Presenter: Ann Patton

Friday, December 15

Stacking the Deck

8:30 a.m.

Presenters: Zach Hobbs and Tracy Morris

Check for time-sensitive notices during your holiday break

During the holiday break, it’s important to make arrangements to check district mail for time-sensitive unemployment and workers’ compensation notices and forms. If you wait to respond until after the break, you may be subject to a penalty or waive important rights to contest benefits. To avoid those problems, be sure someone takes a few minutes each day to check the mail.