Introduction and Note from John Holmes
Many of you have read my letters long enough to know that they are not usually advertisements. This one is an exception, but for a really good reason. Any Christian school would be wise to take advantage of the ACSI Legal Defense Reimbursement Program (LDRP).
Let’s praise God for every year we are not faced with litigation. But when the legal storm comes—and it may—the money and insight provided by the ACSI attorneys will take away a lot of the “sting” that could otherwise result. Should you ever have to face a legal battle, holding membership in the LDRP would be so much better than facing a legal fight alone.
Since the start of LDRP seven years ago, no participating ACSI school has incurred legal expenses beyond the amount of the benefit available. ACSI’s hope, of course, is that your school will not have legal problems in the year ahead. However, the peace of mind that accompanies the protection this program provides is well worth the $199 fee. Have a blessed summer!
Dr. Holmes’ Predictions: Six federal issues that threaten U.S. Christian schools in the next five years:
- Federal spending could trip hyperinflation.
- Increased rights and marital privileges for homosexuals could deteriorate religious freedom. I anticipate that the United States will follow the political pattern established by Canada in spite of the fact that only 33% of Americans support same sex marriage. —Nima Reza, “Support for Same-Sex Marriage Plummets,” CitizenLink.com, 6/18/09
- Hiring/Firing rights based on a biblical perspective could be challenged repeatedly. Christian schools could have challenges related to “civil rights” or “human rights” from agencies such as the U.S. Equal Employment Opportunity Commission (EEOC) and Department of Agriculture (USDA).
- There could be a major increase in benefit costs for staff because of what will be forced government one-payer health insurance for Christian school employees. Estimated losses are $1.6–$3 trillion.
- Clones of Christian schools from the public charter-school movement, clones that have the USDE “bully pulpit” support and (maybe) some extra funding from the Obama administration, could appear.
- A federal grant Universal Pre-K (UPK) program could directly compete with religious preschool programs, which currently control about 80% of the early education market.
Two positive trends from federal efforts:
- The Bush and Obama administrations have both made efforts to protect the religious freedom of religious people and entities. Ombudsmen in most federal departments have proved helpful.
- The deputy secretary of education has asked ACSI to devise a way to protect religious preschools in preparation for the time when the federal government begins to fund UPK state grants.
From Capitol Hill
DC Opportunity Scholarship Program has funding through 2009/2010. President Obama has added language in his budget to keep the current students in their schools until they graduate from high school. In May, Sen. Joe Lieberman (I-CT) held a hearing regarding the program. He has pledged to submit a bill later this year to keep the program alive. A chorus of national papers—including the Wall Street Journal (WSJ), the Washington Post, USA Today, and the Washington Times—have stood bravely in support of the 1,700 students enrolled in the DC Opportunity Scholarship Program and the countless other low-income students who would seek a scholarship. On June 19, the WSJ even took on the National Education Association (NEA), pointing out “fibs” in the NEA’s letter to the Senate about the “failure” of the DC voucher program!
Paycheck Fairness Act seeks to amend the Equal Pay Act of 1963 to
- bar retaliation against workers who share information about wages with other employees,
- allow for compensatory and punitive damages,
- allow for opt-out class actions (as opposed to the current opt-in collective actions under the Fair Labor Standards Act of 1938), and
- narrow the “any factor other than sex” affirmative defense by requiring that employer-proffered rationales for pay disparity be bona fide job-related factors linked to business necessities.
This legislation combined with the recently passed Lilly Ledbetter Fair Pay Act of 2009 could trigger a wave of individual and collective wage-and-hour suits. These bills should encourage employers to take appropriate measures to ensure their compensation policies and procedures are being updated and implemented properly. Employers should also start looking more closely at their compensation structure to ensure that any disparity is indeed based on bona fide factors related to business necessity.
Mandatory paid sick leave bill. Rep. Rosa DeLauro (D-CT) and Sen. Ed Kennedy (D-MA) reintroduced the Healthy Families Act in both houses in May. The measure, which was also introduced in Congress in 2007, requires an employer to provide to workers seven paid sick days per year to care for their own or a family member’s medical needs. The act would apply to employers with 15 or more employees.
Arbitration Fairness Act of 2009. On April 1, 2009, the Supreme Court ruled in the case of 14 Penn Plaza LLC v. Pyett that mandatory arbitration clauses with respect to Age Discrimination in Employment Act of 1967 claims are enforceable. In direct response to that decision and the increasing willingness of many courts to enforce mandatory arbitration agreements, Congress introduced legislation to overturn the ruling. Bills titled Arbitration Fairness Act of 2009 seek to make the predispute, mandatory arbitration provisions contained in employment, consumer, and franchise agreements unenforceable. (However, such arbitrations entered into before enactment of the legislation would still be enforceable.) Enactment of these bills would drastically alter the employment landscape, because employers would no longer be allowed to include arbitration clauses in employment agreements. Instead, employers who prefer the arbitral forum would have to wait until after a dispute to seek an agreement with the employee to resolve the matter through arbitration.
The Family Leave Insurance Act of 2009 creates a new federal insurance fund to provide employees with up to 12 weeks of paid family and medical leave each year. The bill would supplement the existing Family and Medical Leave Act of 1993 (FMLA), which currently provides for such leave on an unpaid basis. As the FMLA is now constructed, employers and employees would each pay premiums of an amount equivalent to 0.2% of each worker’s earnings into the fund. Those employers with fewer than 20 workers would pay a 0.1% premium and would then have the option of participating in the fund. The fund would provide up to 12 weeks of annual paid leave for workers who need time off to care for a new child or a family member with a serious health condition, or to tend to their own serious health condition. Employees who pay into the fund for six consecutive months and accumulate at least 625 work hours during the prior six-month period would be eligible for benefits. According to a study accompanying the bill, an employee making the national median income would pay about $80 a year into the fund. [See the Library of Congress THOMAS website for more details on this bill or any of the other bills noted in this newsletter. —Ed.]
Legal/Legislative alerts. Some topics ACSI covered this past year are the H1N1 virus, guidance for ARRA, COBRA changes, Form I-9 issues, 403(b) status, and FMLA-related issues. Check out our Web links to view alerts and reference articles.
ACSI’s Legal Defense Reimbursement Program (LDRP). ACSI has expanded the LDRP to include reimbursement of attorney fees of up to $500 to participating member schools so that they can obtain legal advice through prelitigation attorney consultations for threatened employment-related litigation. The exact per-hour limit and other terms and conditions are contained in the LDRP Indemnity Agreement. Aside from this $500, a participating school is eligible to seek reimbursement for its legal fees up to $30,000 for the aggregate of all covered claims or suits filed in a school year. Schools wishing to participate this school year will pay $199 to be part of this ACSI indemnification program. Under the agreement, coverage lasts from the time of acceptance into the program through the end of the school year.
If a member school is sued, the LDRP agreement would cover (a) problems involving student evaluation, discipline, or graduation; (b) suspension or dismissal of a student; (c) alleged failure to meet standards of a student’s educational preparation; (d) alleged failure to protect individuals from discriminatory conduct; (e) discipline or termination of an employee; (f) disputes over job references; (g) problems with the administration of employee benefit programs; and (h) employment discrimination complaints filed with the EEOC or a similar state agency, among other things. The agreement does not provide reimbursement of attorney fees for lawsuits regarding physical injuries to an employee or a student, for defense costs associated with any workers’ compensation action or proceeding, or for costs related to any loss or injury arising directly or indirectly out of or in connection with any sexual act (including sexual harassment) directed against any present or past employee or student. Nor will a school be reimbursed for a covered activity unless it follows simple procedures required under the indemnity agreement, such as notifying ACSI immediately when litigation is threatened or a claim of discrimination is filed against the school. ACSI is mailing the LDRP information and application to your school at the beginning of July. If you have questions about this program, please call headquarters at 719.528.6906, ext. 135.
National Notes, July 2009