How important are school district job titles? Unclear or inaccurate job titles may be a lawsuit waiting to happen in your school district. A couple of recent events have prompted me to spend a few minutes discussing school district job titles and considerations that districts should keep in mind as they review job classifications and job descriptions. Inaccurate, outdated, or poorly thought out school district job descriptions can prevent organizational clarity, and in some cases set districts up for costly and embarrassing lawsuits.
Thou Shalt Not Misuse Job Titles
This past week I read a news story about school district job titles in the Cincinnati Catholic Schools. According to the article, new contracts issued to teachers within the Archdiocese of Cincinnati prohibit educators, regardless of personal or religious beliefs, from sharing living arrangements with partners out of wedlock or having sex outside of marriage. The new contracts also forbid teachers from using in-vitro fertilization or engaging in, or supporting a homosexual lifestyle. The article went on to say the new contracts for the 2014-2015 school year added the job title “ministers” to all district teachers. The addition of this new job title is seen by many as a legal maneuver to protect the archdiocese from being sued by teachers for infringing upon their civil rights. Ministerial exceptions have been used in past court cases where the church could demonstrate the larger part of that person’s role was ministerial in nature. (This is where this case is going to get sticky).
Under the Fair Labor and Standards Act (FLSA), Section 541.2 specifically states “A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee’s salary and duties meet the requirements of the regulations.” The duties test boil down to what primary duties/ work is the employee actually performing. In short, the district employees’ actual job tasks must be evaluated, along with how the particular job tasks “fit” into the employer’s overall operations. Simply changing the job title of an employee to fit an organizational need will likely lose any court challenges. While the Cincinnati Archdiocese situation does not fall under FLSA rules, it will likely be challenged based on EEOC, First Amendment rights, or other Civil Rights issues. Judges and attorneys will look closely at the same factors under FLSA such as duties teachers perform, not their job titles to determine if, in fact, educators can be classified as ministers.
In mentioning the recent events in Cincinnati I am not attempting to incite a debate over whether the archdiocese choice is right or wrong. Rather, I wanted to highlight a very public example of how simply trying to change a job title to fit operational objectives can potentially backfire. Let me discuss another example that does not have as many hot button issues.
Job Titles Are Not a Tool to Manage Payroll
A few months ago a very large school district contacted us through email. We spoke with them over the phone the next day to see how we could help them. The district wanted help in updating the job descriptions for nearly 200 different positions in their school district. As I spoke with them and learned more about their needs and situation they told me the district was in the process of settling a costly lawsuit regarding overtime pay. The district representative said the previous central office administrative team decided they could save the district money by cutting overtime pay. The solution was to provide new job titles for many of the districts clerical type jobs. As many of you are aware, under the FLSA unless exempt, employees are to be paid at an hourly rate and must be paid at one and one-half of their regular hourly rate for any overtime worked. The former leadership team at the central office thought if they gave some employees (who were performing clerical type work) exempt-like job titles of “manager” or “director” they could make them “exempt” employees and have them work overtime without the expense of overtime since exempt employees are paid salary and are not entitled to overtime pay. (Disclaimer: While it is not true in the situation I am discussing here, in situations salaried employees can be classified as non-exempt).
Several of the district’s employees were not impressed by their new classification of an exempt employee with a glorified job title and small raise when they realized their monthly salary was actually less than it had been under their old job titles and FLSA classification when factoring in the overtime they would have normally been paid for performing. As a result, employees filed a lawsuit under the Fair Labor Standards Act claiming they were still performing predominantly non-exempt tasks at work, therefore they should have been paid overtime for all occasions when they worked more than 40 hours in a week. The judge found in favor of the employees and the district paid substantial fees in court costs, fines, and past due wages, not to mention the damage to employee trust and community public relations.
School Districts that Misuse Job Titles Are Becoming Targets
Lawsuits filed under FLSA against school districts are on the rise. An article from the American Bar Association suggests the increase may be due to attempts to shift wage costs (as discussed in the example above) or in many cases, due to aggressive marketing by law offices that are trying to increase their business by educating employees through newspapers and commercials giving them indicators to see if their employers are in violation of FLSA and are possibly owed past wages. It’s a new era of ambulance chasers, but now they are school bus chasers.
Job Titles Matter When Dealing with Unions
Finally school districts must ensure job titles and the classifications to which they place employees do not interfere with employee rights under the National Labor Relations Act (NLRA). Under the NLRA an employer may not:
- interfere with or restrain employees who are exercising their rights to organize, bargain collectively, and engage in other concerted activities for their own protection
- interfere with the formation of any labor organization—or contribute financial or other support to it
- encourage or discourage membership in a labor organization by discriminating in hiring, tenure, or employment conditions
- discharge or discriminate against employees who have filed charges or testified under the NLRA, or
- refuse to bargain collectively with the employees’ majority representative.
So what does any of this have to do with job titles?
Managers are not protected by the NLRA, and cannot join unions or be part of the bargaining unit. These employees are considered to be part of an organization’s management rather than its labor force. If school district employees are given job titles such as manager or director, but the nature of their work is not managerial or supervisory in nature, school districts may find themselves appearing in court or before the National Labor Relations Board explaining why they are preventing district employees from exercising their right to join a labor union. Cases like NLRB vs. Kentucky River Community Care Inc. have also held that some supervisors can be represented by the union. State and local laws may vary and provide collective bargaining rights to supervisors.
Concluding Thoughts About School District Job Titles
Job titles for school district employees are important for reasons beyond legal ramifications, however school district leaders must ensure they adhere to federally mandated labor laws. Do not assume you are compliant. It may be worth your time to review and update your job descriptions and job titles to ensure your school district doesn’t end up with a dunce cap on in court. If Wal-Mart, the world’s largest retailer and largest employer, has found itself before federal courts numerous times over the past decade due to inaccurate or misrepresented job titles and employee classifications, chances are school districts are in danger of this HR faux pas as well. Take some time this summer to review your district’s job titles and ensure job titles accurately reflect school district employee duties.
As always, if you need additional help or advice, please contact us and a member of our team will be happy to assist your district in any way we can. If you found the information here useful, please consider sharing this article through your favorite social media platforms.
I shared this article on one of the Linkedin groups that I subscribe to and had some great feedback from fellow group members. I decided to add one comment in particular that is not directly related to job titles, however it is a constant legal issue that organizations across the country struggle with related to compensation of non-exempt employees. Here is the comment followed by my response:
“From my experience it is the least of the worries for lawsuit where districts are concerned. How often does the Superintendent or other administrator have their assistant link their phone to their work. Yes if you call them at 6pm and keep them on the phone for an hour you better see it on their timesheet. Districts spend so much time worrying about exempt staff that they forget the workers. When a wage and hour investigation is launched to look at one employee who has not been compensated for those extra hours, ‘THEY LOOK AT EVERYONE’.
I actually saw a governmental entity have to pay millions in back pay to individuals who logged in from home to check their mail. When they look, the electronic log on records and phone records will be matched to the time clock records so they better match each other and payroll. As for the job descriptions those can cause a suit from both exempt and non-exempt so they should be well in line with the duties of the job and should meet the standards for exempt status. One more thing exempt does not say you can work them freely. If you know their position will require in excess of 40 consistently and you are using exempt status to avoid OT – You lose in court. The best HR practice is to be honest in your actions.”
Many hourly non-exempt employees want to show their superiors they are committed and go above and beyond, even if it means working off the clock, not knowing that they are putting their employer in a legally precarious situation. On the flip side, you are right, often superiors have the mentality of “I needed this done yesterday” and they call or email a non-exempt subordinate asking for assistance without ever thinking about the need to ensure the non-exempt employee is properly compensated. As a result, even if the non-exempt employee is aware they need to be paid for their time, they often don’t want to appear as greedy in bringing the point up. The best way to avoid this is to create a culture that communicates it’s commitment to paying employees for their time. This could include:
- Commitment to doing the right thing. Demonstrate the district’s commitment to pay non-exempt employees for overtime during your orientation program and regular communications. Your district may have a conservative stance on overtime and try to avoid requiring it as much as possible, but discuss procedures the district will follow in the event that any non-exempt employee works more than 40 hours in a work week.
- Educate exempt employees. Exempt employees, often directors and principals, should clearly understand the implications of compensation for working more than their normal scheduled work day. They should avoid, as much as possible, asking non-exempt employees to perform work after they have officially “clocked out” and the district should set up protocols in the event the absolute need arises.
- Educate non-exempt employees. Non-exempt employees should clearly understand the district’s policy for working overtime, which includes potential consequences for unauthorized overtime. If non-exempt employees are contacted or emailed while they are not “clocked in” they should be trained to begin all conversations with a question that inquires, “Is this a discussion that I need to complete a time sheet when we are finished?” This will keep exempt employees mindful of the need to choose off the clock discussions wisely.
- Accountability. In some cases, non-exempt or exempt employees may need to be held accountable for “off-the-clock” work. Typically accountability begins with documented coaching and consequences up to and including termination. This may seem harsh but policies demonstrate the district’s willingness to properly compensate non-exempt employees for their time and consequences for failure to adhere to established guidelines. If exempt employees are constantly asking or allowing non-exempt employees to perform work off the clock, or if non-exempt perform work “off-the-clock,” outside of the approval of a superior, they may need to be coached to demonstrate the district’s willingness to enforce wage and hour laws.
(Understand this article will be read by individuals all across the U.S. and in many other countries and we cannot write in generalized legal terms, nor is this article intended to be legal advice. We bring up these points to ensure school districts are, at the very least, mindful of the considerations that must be made when creating or reassigning job titles).