A LESSON ON THE ADA INTERACTIVE PROCESS

A recent case out of the Tenth Circuit Court of Appeals is instructive in the need to engage in the interactive process under the ADA when an employee claims that a disability will impact his or her ability to do the job.

In the case of Lowe v. Independent School District No. 1 of Logan County, Oklahoma, an employee had a post-polio condition and was advised by her doctor to avoid standing and walking for long periods of time.  The employee was employed as a counselor and required no accommodations for her disability.  However, she was re-assigned to a position as a classroom teacher and shared concerns with her employer that she may require accommodations for this new position.  The employee was told that no accommodations would be made and she quite her job.

The Court found that this failure to engage in any interactive process on the part of the School District demonstrated that the employer may have violated the ADA by failing to make a good faith effort to determine if reasonable accommodations could be made to allow the employee to perform the job.  The case is instructive of the need to engage in the interactive process and that the failure to do so could in and of itself could be a possible violation of the ADA. 

The Growing Need to Address the Pennsylvania School System Funding Shortfall and the PSERS Crisis

By: Jeffrey T. Sultanik, Esquire, Chair of the Education Law Group, Fox Rothschild LLP

A majority of school districts in the Commonwealth of Pennsylvania have been severely impacted as the result of the Great Recession. Many school districts that have a substantive commercial tax base are experiencing declining real estate tax revenues as the result of declining values and numerous real estate assessment appeals. Districts are also experiencing little or no transfer tax revenue as the result of no real estate exchanges and limited growth; static or eroding earned income tax revenue; no real expansion in the tax base; and a Commonwealth of Pennsylvania that is literally “broke” because it had to use stimulus monies to support the basic education subsidy for the 2009-2010 fiscal year. Recognizing that the State will be in a precarious situation as the result of using ARRA funds for the 2009-2010 and 2010-2011 school years, Governor Rendell in his recent budget message created a fund for the purposes of building up the State’s coffers to deal with the funding shortfall that will necessarily take place as the result of the missing ARRA funds for the 2011-2012 tax year.

All of the statistics are coupled with the PSERS’ crisis (Pennsylvania School Employees’ Retirement System). For nearly 100 years, the PSERS has been a stable and secure pension program that provided public school employees with a stable and secure retirement. The PSERS’ program provides for unparalleled retirement security for State public school employees by providing a lifetime guarantee of retirement income based upon an average of the three highest years’ salary of the teacher that would be multiplied by a 2.5% per year service rate times the years of school service times an early retirement factor. The program is in the nature of a defined benefit versus a defined contribution pension plan.

As a result of a 25% increase in benefits that took place in 2001 and legislation prompted to defer school employers’ obligations for making contributions in the 2001-2003 time period as the result of Enron losses in the fund, school districts did indeed benefit from a contribution respite. However, the recent economic cataclysm has created a crisis of unprecedented proportions for school entities in the Commonwealth of Pennsylvania.

Based upon a projected 8.5% rate of return on investments, it is expected that the employer contribution rate will increase as follows from 2008-2009 through 2014-2015:

2008-2009

4.76%

2009-2010

4.78%

2010-2011

8.4%

2011-2012

10.7%

2012-2013

29.55%

2013-2014

32.45%

2014-2015

33.95%

These numbers clearly have the potential of bankrupting every school entity in the Commonwealth of Pennsylvania. Though it is true that the Commonwealth of Pennsylvania currently reimburses school districts for one-half of the PSERS’ rate, one has to question how long the Commonwealth of Pennsylvania will continue to fund the 50% share given the State’s economic problem.

To date, the Commonwealth of Pennsylvania State Legislature has not effectively addressed this issue. Indeed, one can seriously speculate that the reason that the State has not dealt with this issue is that State legislators are also the beneficiaries of a similar State program.

Unless the PSERS’ issue is successfully addressed, I cannot see how school districts can enter into any longer term arrangements with teachers’ unions given the cataclysm that exists around the corner.

Will Pennsylvania High School Students Be Allowed to Enroll in College Earlier?

Although Pennsylvania law already provides some ways for students to attend college while still in high school (and leave altogether in certain circumstances), the New York Times reported on February 17, 2010 that Pennsylvania and seven other states will pilot a program that will permit students to graduate after 10th grade and go on to college.

http://www.nytimes.com/2010/02/18/education/18educ.html?hpw

Although unusual, Pennsylvania law does not really prevent this now.  Compulsory attendance ends at the point of graduation, which can be before age 17.  Such graduation requirements are set by individual districts with only general guidance by statute and PDE.  Further, PDE regulations contemplate both part-time high school / college attendance and also altogether dropping such kids from the high school rolls if they opt to leave high school before graduation to attend college.

In the article, this is a plan touted by the National Center on Education and the Economy and is aimed at raising various basic proficiencies.  One wonders, however, how this plan will change the educational landscape.  Since, according to the article, "Students who pass but aspire to attend a selective college may continue with college preparatory courses in their junior and senior years," who will actually go and who will remain a district's responsibility? 

The Rules of Bargaining with Teachers' Unions in Pennsylvania Need to Change in Light of the Recession and the Economic Drivers Impacting School Districts

By: Jeffrey T. Sultanik, Esquire, Chair of the Education Law Group, Fox Rothschild LLP

In every issue of School Business Daily, there are reports of school entities throughout the nation being forced to consider cutbacks of staff and teachers’ unions considering concessionary contracts. This national trend has, in large part, been precipitated by the Great Recession of October 2008, which has challenged school entities and state revenues regardless of the jurisdiction.

Notwithstanding this national trend, teachers’ unions in Pennsylvania seem to be immune and/or insensitive from recognizing the pervasive impact that the economy has had on school entity operations in Pennsylvania, as well as the specific economic drivers that impact school funding in the State.

In Pennsylvania, it has been my premise that the education sector was slow to be impacted by the Great Recession and it very well will take much longer to recover from the Great Recession and the issues that flow from the situation.

Even though the Consumer Price Index for the Commonwealth of Pennsylvania hovered for a good portion of the 2009 calendar year in the -1% territory, overall salary increases in the Commonwealth for the 2009-2010 school year averaged 4.2% per year or $2,422.00 as an average raise. The highest raise for 2009-2010 was 7.9% in the State or $5,294.00, and the lowest raise was 1.8% or $1,065.00. Though many of these settlements predated the October 2008 inception of the Great Recession, a number of contract settlements continued this trend in a post-October 2008 world.

According to PSEA statistics submitted in an October 2009 Fact Finding in Lehigh County, the following represents the average percentage increase and average dollar increase for the year in question throughout the Commonwealth of Pennsylvania:

Year

Average Percentage Increase Including Step Movement

Average Dollar Increase

2010-2011

4.1%

$2,434.00

2011-2012

4.1%

$2,553.00

2012-2013

4.1%

$2,600.00

2013-2014

4.3%

$2,763.00

Even though this trend appears to be constant in the Commonwealth of Pennsylvania, according to the Bureau of National Affairs, the average percentage increase for collectively bargained contracts (private and public sector nationally) is hovering in the average of 1.6%.1 Something is wrong here and in future blog pieces, we will try to address the reasons for what is going on in bargaining.

Notes:
1 - See Daily Labor Report, February 11, 2010.