Top 6 employment law predictions for education employers – and what you need to do to prepare for them | Fisher Phillips

As part of our FP Forecast series – but we had too many ideas to fit in this edition. So we’ve taken it to the next level and developed a comprehensive article that provides employers in the education sector with the top six trends you can expect for the rest of 2022 – and offers advice on how you should prepare. proactively

1. The culture wars will continue to rage

We will see the continuation of the culture wars raging in several states throughout 2022. The debate will revolve around three main areas: prohibitions or limitations on discussing issues of sexual and gender identity in schools; whether to allow transgender girls to participate in girls’ sports; and education – including employee training – on racial discrimination and implicit bias. Many of the existing laws in these areas currently apply to public schools, but private schools should expect the debate over these restrictions to spill over into their curricula as well. You should expect parents to demand more disclosure or restrictions in 2022. As various groups have challenged many of these laws as violating free speech and civil rights, schools will be left in limbo until until the courts consider the claims. And since many of these laws involve the personal liability of teachers, administrators, or counselors, expect to answer questions and concerns from your staff as well.

2. Accommodation demands related to gender identity will continue to soar

Meanwhile, schools will continue to see an exponential increase in accommodation requests related to gender identity – for both students and employees. Your administration will be at the forefront of solving these difficult issues in 2022. Many requests will be made on behalf of very young students, which will present challenges around confidentiality – not to mention the need to clearly define the boundaries around appropriate discussion of sexual topics. at school. If you haven’t yet created an action plan for how you will handle these demands, you need to do so immediately to prepare for the inevitable.

3. Religious rights will be pushed like never before

Just as we will see more movement in the culture wars, we will also see more activity with religious schools wanting to strengthen and understand their rights to uphold their principles in employee and student relations and standards of behavior. As gender identity issues become more pervasive and the Biden administration reinstates stronger protections for transgender students in 2022, we will see more challenges to laws that do not currently contain exemptions for institutions. nuns in the coming year. We will also see more cases of schools and religious institutions asserting their rights by claiming that the ministerial exception allows them to fire teachers and other functional ministers who do not adhere to important religious guidelines established by the school.

4. Name, image and likeness controversy will land in K-12 schools

It’s a popular belief that the NIL issues work their way through the justice system – where athletes can be compensated by third parties for their name, image and likeness – are limited to the context of higher education. Not so. We are now seeing athletes challenge prohibitions that exist at the K-12 athletic association level regarding a student’s right to receive compensation based on their NIL while also participating in athletic competitions at the pre-college level. How these challenges will resolve in 2022 is uncertain at this point, but we expect you will soon see a shift in the dynamic between students and their families and their interactions with your school in this area. Prepare for how you will adapt to this new world.

5. Expect scrutiny of your child abuse reporting practices

Law enforcement authorities in some states are stepping up efforts to hold schools accountable for failing to appropriately report child abuse activity — and it’s becoming a disturbing trend as those states aggressively scrutinize behaviors that most schools would consider reasonable. You can expect to see this scrutiny expand to other states, and you can expect child abuse authorities to focus on allegations of student-to-student sexual abuse. Your immediate focus as you start planning your back-to-school training sessions over the next few months should be reporting child abuse. Be sure to cover the nuances of the assessment, especially because the details of what can and cannot be flagged can still be a bit grey. You should also consider combining this with your boundary and harassment training to ensure that all of these important and interrelated topics are covered at least once a year.

6. It’s time for a pay equity audit

A final area of ​​accountability that we believe will hit schools with renewed vigor in 2022 relates to pay equity challenges. Schools have not been as systematic as they should be in ensuring fairness in pay and benefits compared to employers in other industries. You should spend part of the rest of the year taking into account differences that may arise in total compensation when considering additional degrees, surcharges, allowances, housing, and other benefits. Because this is an area of ​​heightened interest for the EEOC, you should take the time to assess your pay equity situation – but be sure to do so with the guidance of a legal counsel – to identify and correct any areas of concern. It would also be a good idea to include an audit of wage hours at the same time, as wage claims continue to be one of the most common – and costly – types faced by all employers nationwide. .