Author: joshdherman

Court Orders New Overtime Rules Delayed

Employers Question How To Pay Overtime Now That New Overtime Rules Delayed

By Joshua Herman

email: joshua.herman@mhtlaw.com

For now, implementation of new federal overtime regulations has been delayed. A federal court halted the December 1, 2016, implementation of the Department of Labor’s (“DOL’s”) new regulations doubling the minimum annual salary from $23,660 ($455 weekly) to $47,476 ($913 weekly) in order for an executive, administrative or professional employee to be exempt from overtime requirements. Following the court’s ruling in State of Nevada v. U.S. Dep’t of Labor, No. 16-00731 (E.D. Tex. Nov. 22, 2016), employees exempt from overtime requirements will continue – for now – to be those receiving $23,660 annually ($455 weekly).

How this change impacts Illinois employers is less than clear.

The underlying opinion (available at http://src.bna.com/kgs) is the product of a coalition of states and businesses seeking to overturn the new rule. The coalition argued the DOL overstepped its authority because the Fair Labor Standards Act (“FLSA”) enacted by Congress provides that “any employee employed in a bona fide executive, administrative, or professional capacity… as such terms are defined and delimited from time to time by regulations of the Secretary” shall be exempt from minimum wage and overtime requirements. 29 U.S.C. § 213(a)(1). The FLSA overtime exemptions do not refer to any salary requirement.  In analyzing Congress’ actual language, the court found that Congress intended to exempt employees based on their executive, administrative, or professional (“EAP”) duties, not their salaries.

The court’s preliminary injunction states the new regulations are unlawful because the DOL “exceeds its delegated authority and ignores Congress’ intent by raising the minimum salary level such that it supplants the duties test.” The court explains that “[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

Despite the fact that the DOL has stated it cannot evaluate overtime exemption based on salary alone, the court found that the new rules would essentially create a de facto salary-only test. The court further held that the new regulations would cause irreparable damage due to the significant expense of compliance if they were allowed to go into effect.

The court held that public interest is best-served by an injunction, stating that:

If the Department lacks the authority to promulgate the Final Rule, then the Final Rule will be rendered invalid and the public will not be harmed by its enforcement. However, if the Final Rule is valid, then an injunction will only delay the regulation’s implementation. Due to the approaching effective date of the Final Rule, the Court’s ability to render a meaningful decision on the merits is in jeopardy. A preliminary injunction preserves the status quo while the Court determines the Department’s authority to make the Final Rule as well as the Final Rule’s validity.

Consequently, the court imposed a nationwide injunction because the DOL’s regulations are applicable to all states, extending the scope of alleged irreparable injury nationwide.

The injunction prevents the DOL from implementing and enforcing the new overtime regulations; however, the impact of this ruling on Illinois employers is less than clear. The injunction is only temporary, pending further action by that court. The court can lift the injunction at any time, or if the court makes it permanent, the injunction can be reversed upon appeal. If lifted or reversed, courts dispute whether the regulations would retroactively apply to employers who delayed implementation.

Should I implement overtime changes now that new overtime rules have been delayed?

Employers have significantly invested in preparing for the new regulations, but they are now faced with the crucial question: “Should I delay implementing changes to comply with the new regulations to avoid significant and possibly unnecessary costs, or should I proceed?” If the regulations eventually become effective, employers who violate them may be fined up to twice the unpaid overtime, civil penalties, and be responsible for employees’ attorneys’ fees.

Employers should consider the risks of further action and proceed on a case by case basis, seeking legal advice where necessary.

Generally, employers who have prepared no-cost solutions (such as limiting employees to 40 hours a week, or converting a salaried employee to hourly compensation at a rate that will not incur additional costs after considering overtime), should implement those solutions. Costly changes (such as raising an employee’s salary to the new threshold) can be delayed while the temporary injunction is in effect; however, employers should immediately begin to track impacted employee hours. If the injunction is lifted, or applied retroactively, these records should allow employers to adequately compensate employees in compliance with the new laws while minimizing potential risks associated with their delay.

Employers that have already implemented costly changes should exercise extreme caution before reverting to earlier practices. Not only will such actions have practical effects on current employee morale, they may also be prohibited based on collective bargaining requirements or other property rights employees may have in their new salaries.

It is uncertain whether the current exempt salary threshold will remain, increase as a compromise, or be completely eradicated. Further, it is unclear whether the incoming Trump administration will continue to push for these regulations, which were created at the Obama administration’s request. Only time will tell. Wise employers will pay close attention to developments on this matter.

For more information or to receive fact-specific advice, contact Joshua Herman and our Labor and Employment team.

Krumpe Wins 2016 Pro Bono Service Award

In connection with National Celebrate Pro Bono week, the 10th Judicial Circuit has awarded Jeffrey E. Krumpe the 2016 Pro Bono Service Award in recognition of his selfless service.  Krumpe has accepted cases from Prairie State Legal Services since 1995.  In that time he has handled 25 cases and provided more than 420 hours of free legal services to clients.  Over the years, Jeff has successfully represented numerous clients with unlawful garnishments,  divorces, lien foreclosures and fraud cases.

Coins stacked in front of clock

Park Districts & Governments Must Know the New Overtime Rules and Other Legal Developments

We invite elected officials, officers, and administrative employees of local governments or park districts, and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. This focused seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA).

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact  Local Governments & Park Districts and as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for local governments and park districts.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

Employee Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules to area business leaders.

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders (pictured above). Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

5:00 p.m.  – 6:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and Hors d’Oeuvres)
4:30 p.m. – 5:00 p.m.:    Registration and Hors d’Oeuvres
5:00 p.m. –  6:30 p.m.: Presentation, Q & A

Tiled sheet of $1 Bills

What Schools Need to Know Now about the New FLSA Overtime Regulations and Other Legal Developments

We invite school administrators, board members and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. The October 26, 2016 lunch-and-learn seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA). Do not wait to learn about these changes at the Illinois Association of School Boards’ conference – it could be too late!

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact Schools as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for schools and educational institutions.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

School Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders. Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

 

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

 

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

12:00 p.m.  – 1:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and lunch)
11:30 a.m. – 12:00 p.m.:    Registration and lunch
12:00 p.m. –  1:30 p.m.: Presentation, Q & A

Using personal cell phone to create employee emails subject to FOIA

Public Employee Emails Subject to FOIA

Even when using private email or devices, employee emails are subject to FOIA and must be included in a reasonably adequate search.

By Joshua Herman

email: joshua.herman@mhtlaw.com

On August 9, 2016, the Illinois Attorney General’s Public Access Counselor (“PAC”) issued Binding Opinion 16-006, which addressed the Freedom of Information Act’s (“FOIA”) application to employee email. The opinion unequivocally held that public employee emails were subject to FOIA, requiring that public bodies conduct a reasonable search for these responsive records, which includes searching public employees’ private emails.

Background of Request for Employee Emails

In January of 2016, CNN submitted a FOIA request to the Chicago Police Department (“CPD”) that sought “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 specific officers during various dates. CPD eventually provided its response on April 19, 2016. CPD’s response consisted of a series of emails with attachments totaling over 500 pages. CPD did not cite any exemptions nor did it provide an explanation with its untimely response.

Request for Review by PAC

CNN filed a Request for Review with the PAC, claiming the CPD’s response did not contain any responsive records despite the fact the CPD claimed that the provided emails were “all of the records found in their search.” CNN asserted that the CPD did not conduct an adequate search because CPD’s response did not contain “a single responsive email.”

Investigation of Whether Requested Employee Emails were Subject to FOIA

The PAC began its investigation by asking the CPD for:

“A detailed description of the processing of [the] FOIA request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted.”

CPD responded that it searched its email system for the 12 named officers for the requested time periods, resulting in 47 e-mails being located. Some of these e-mails were described as being “News Clips” and 12 of the emails were copies of the same two emails.

CNN pointed-out that CPD’s response indicated that the CPD did not search for officers’ emails on any other platform or device, including personal email accounts. CNN argued that:

“Even if the Department does not retain control over personal email or devices, it still has a duty to request copies of such communications that relate to the officer’s public service role and/or in the performance of their government function.”

CNN further questioned how the CPD conducted its search:

“Regardless of the email accounts and devices actually searched, it is entirely unclear to us the search terms and/or parameters the Department actually undertook in conducting its search. Obviously, the search terms used, and the review procedures utilized that would identify highly-relevant documents that might not be found using a search term, are crucial to obtaining CNN’s satisfaction that the Department has engaged in a fulsome search responsive to CNN’s FOIA request.”

The PAC then requested that CPD describe the methods it used to search CPD e-mail accounts, including the particular search terms used.

CPD responded by stating that it searched the email accounts of the 12 named police officers for the search term “Laquan McDonald” during the date ranges requested. CPD also confirmed that it had not conducted a search of any personal e-mail accounts, arguing that e-mails on those accounts are not “public records.” CNN responded that:

”Giving public officials like police officers carte blanche to evade FOIA laws by using personal email for public purposes would eviscerate Illinois FOIA. Moreover, public officials would have an incentive to avoid FOIA by deliberately communicating about sensitive or controversial topics on private email. This flies in the face of the very purpose of public information laws.”

Analysis of whether employee emails subject to FOIA

The PAC began its analysis of whether the private emails of public employees may be subject to FOIA by determining whether they could be “public records.” The PAC addressed the definition of “public records” as it was discussed in City of Champaign v. Madigan, a case that held that some government official text messages are public records. According to the appellate court, to be a “public record,” the communication must

  1. Pertain to the transaction of public business and it must have been
  2. Prepared by,
  3. Prepared for,
  4. Used by,
  5. Received by,
  6. Possessed by, or
  7. Controlled by a public body.

After reviewing the City of Champaign case, the PAC explained that when individual public employees act in their official capacity, they are transacting the public business of the public body. The PAC found that CPD’s interpretation would “undercut the principle that public bodies act through their employees” and that excluding all communications on personal devices or accounts, regardless of whether they pertain to transaction of public business, wrongly focuses solely on the method of communication rather than on the content of the communication.

The CPD had also argued that personal email accounts are not subject FOIA because CPD does “possess or control” those records. The PAC rejected this argument, explaining that an agency always acts through its employees and officials and that if one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the employee or official stores them outside of the agency.

The PAC explained that the CPD’s argument “would yield absurd results by enabling public officials to sidestep FOIA and conceal how they conduct their public duties simply by communicating via personal [electronic] devices.”

CPD also argued that searching personal email accounts would subject employees to unreasonable and unnecessary invasions of personal privacy, an exemption under Section 7(1)(c) of FOIA. However, this exemption expressly states that “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Consequently, according to the PAC, any emails exchanged by CPD employees pertaining to Laquan McDonald would pertain to public business and accessing them would not be an unwarranted invasion of personal privacy.

Although personal accounts can contain public records, the PAC explained:

“[t]he fact that a personal e-mail account is used to send or receive public records does not transform all communications sent or received on that account, in particular those with no connection to the transaction of public business, into public records that must be disclosed in accordance with FOIA.”

The PAC noted that the CPD did not assert that it asked employees whether they possessed responsive emails, nor did the CPD assert that any employee objected to providing responsive emails. Indeed, the CPD indicated that it took no action to ascertain whether its employee’s had responsive records. The PAC explained that although a public body need not search every record system, it cannot limit its search to only one system if others are likely to contain records responsive to a request.

While FOIA does not specify the manner in which a public body must conduct its search for records, the PAC stated that ordering the CPD officers to produce any responsive records they possessed may have satisfied CPD’s obligation to conduct a reasonable search. In support of this, the PAC cited cases that hold, absent a lack of good faith, a public employee’s search of his personal e-mail and confirmation that he did not locate responsive records satisfies the public body’s obligation to conduct an adequate search.  In light of FOIA, CPD could not simply decline to search for responsive emails on an officer’s private email account.

The PAC also addressed whether CPD’s search term of “Laquan McDonald” was adequate under the circumstances. The emails CPD did produce demonstrated that officers referred to McDonald in multiple ways, including misspellings and the use of only one part of his name. The PAC explained that under these circumstances, the singular search term was “not reasonably calculated to discover all relevant records.”

CPD Ordered to Obtain Employee Emails Subject to FOIA

The PAC found CPD’s response and underlying search to be inadequate under FOIA. The PAC’s binding opinion required the CPD to conduct a search of the personal e-mail accounts of the relevant CPD officers. The PAC suggested that, at a minimum, this requires the CPD to ask the officers whether they possess responsive records, and if so, requiring the officers to provide copies of those records to the CPD.

The PAC further directed CPD to expand its search terms to more reasonably attempt to locate responsive records by including:

  • Alternate name spellings,
  • Names of officers,
  • The incident number,
  • The location of the incident,
  • And a physical description of Laquan McDonald.

Conclusion and next steps

In summary, the PAC’s Binding Opinion held that public bodies must take reasonable steps to locate all public records responsive to a FOIA request. Because employee emails are subject to FOIA to the extent they are public records, regardless of whether they are stored in or sent by a private account or private device. Based on this opinion, in order to comply with FOIA, public bodies should investigate whether employees’ private email, devices and text messages contain responsive records. This means, at a minimum, public bodies must at least ask their employees if they possess responsive records.

This PAC opinion also requires public bodies to craft searches reasonably designed to find relevant documents by using multiple search terms that could be used in or related to relevant records.

Of course, every situation is different based on the facts and circumstances involved. A public body should consider seeking legal advice to ensure it has complied with its legal obligations under FOIA.

Click here for a copy of the complete binding opinion regarding the disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business and the Duty to Conduct a Reasonable Search for Responsive Records.

Image of cannabis leaves

New Law Decriminalizing Marijuana and Drug Paraphernalia

Ordinances Enacted by Units of Local Government Not Affected by New Law Decriminalizing Marijuana and Drug Paraphernalia.

By:  Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

Effective July 29, 2016, the possession of certain small amounts of cannabis and drug paraphernalia are no longer criminal offenses.  The bill that was signed into law by Governor Bruce Rauner on July 29, 2016 decriminalizes the possession of small amounts of cannabis and drug paraphernalia by amending the portions of the Illinois Criminal Code pertaining to possession of cannabis and possession of drug paraphernalia.  Under the amended Cannabis Control Act (720 ILCS 550/1 et seq.), a person in possession of less than 10 grams of any substance containing cannabis is guilty of a civil law violation.  Such civil violation is punishable by a minimum fine of $100 and a maximum fine of $200.  Similarly, under the amended Drug Paraphernalia Control Act (720 ILCS 600/1 et seq.), any person who is also in possession of drug paraphernalia [during the civil cannabis violation] is guilty of a civil violation and subject to the same $100 minimum fine and $200 maximum fine.

The proceeds of the fines for these civil violations are distributed as follows:

  1. $10.00 to the Circuit Clerk;
  2. $10.00 to the law enforcement agency that issued the violation;
  3. $15.00 to the County;
  4. $10.00 to the Appellate Prosecutor;
  5. $10.00 to the State’s Attorney; and
  6. The remainder to the law enforcement agency that issued the citation ($45 to $145).

The Cannabis Control Act was also amended by adding a new section which addresses the impact of the changes upon local ordinances.  Section 17.5 of the Act explicitly states: “The provisions of any ordinance enacted by any municipality or unit of local government which impose fines upon cannabis other than as defined in this Act are not invalidated or affected by this Act.”

Therefore, municipalities and park districts are not required to change their ordinances in order to comply with the new law.  Municipalities and park districts may still issue ordinance citations for possession of less than 10 grams of cannabis and possession of drug paraphernalia, as well as impose fines for such possession in excess of $200.  However, because the law is already in effect, municipal and park district police departments should immediately review department policies and procedures with regard to processing violations for possession of cannabis and drug paraphernalia as either ordinance violations, civil violations, misdemeanors, and/or felonies.

Keyboard overlayed with wheelchair handicap symbol

Do You Comply with Website Accessibility Laws?

Recent OCR Investigations Stress Importance of School District Website Accessibility by Individuals with Disabilities

By Kathleen M. Carter

Email: kathleen.carter@mhtlaw.com

Thousands of complaints are made to the U.S. Department of Education’s Office for Civil Rights (OCR) each year regarding disability discrimination by educational institutions. Recently, a focus of those complaints has been on the accessibility (or lack thereof) of school districts’ websites for individuals with disabilities.

Specifically, complainants are alleging that websites of many school districts and educational institutions violate the law because they present barriers to users who are visually impaired, hearing impaired, cognitively impaired, and those with disabilities affecting fine motor control. In response, OCR is aggressively investigating the accessibility of such websites. Indeed, a recent press release from OCR describes just some of the settlements that have been reached recently with school entities following such OCR investigations, each of which involves extensive policy implementation and review, training, auditing, reporting, and development of a proposed corrective action plan. It goes without saying that cooperation with the OCR investigation in each instance came at a substantial cost and time for the educational entities involved.

The underlying basis of the OCR investigations is an analysis of whether public entities’ websites are in compliance with Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, both of which prohibit people from being excluded from participation in, being denied the benefits of, or otherwise being subject to discrimination by public entities or recipients of financial assistance. This prohibition against discrimination applies to all programs, services, and activities, which includes a school district’s website. Examples of accessibility violations include:

  • Websites not using “alt tags,” or text descriptions, for images, which present difficulties for individuals with visual impairments using screen readers to navigate a website;
  • Use of certain text font, size, and color that makes text difficult to read for individuals with visual impairments;
  • Website content only accessible by use of a computer mouse, which presents difficulties for individuals with visual impairments or disabilities affecting fine motor control; and
  • Audio content without accurate captions and transcripts, inhibiting individuals with hearing impairments from accessing web content.

Despite a clear indication by OCR that public school districts’ websites must address these issues and otherwise be accessible to individuals with disabilities, to date there has been no final rule or regulation issued by the DOJ as to how public entities should ensure that their website is accessible to individuals with disabilities.

In the absence of official guidance and regulation, the OCR has used as its “benchmarks for measuring accessibility,” the privately developed Web Content Accessibility Guidelines (WCAG) and Web Accessibility Initiative Accessible Rich Internet Applications Suite (WAI-ARIA), both of which can be found on the Web Accessibility Initiative Website . While these guidelines are not legally binding, in the absence of official guidance, they provide the best standard by which to measure website compliance. Another important resource is the Section 508 Standards, which Federal Agencies must follow for their own web pages and which can be found on the United States Access Board Website.

School districts should take affirmative steps to ensure the accessibility of their website.  While there are numerous technical issues that need to be taken into account for website accessibility, one way to begin to identify common accessibility problems is through “WAVE,” a free online tool to evaluate website accessibility. It can be found at http://wave.webaim.org/.  Upon review and identification of any accessibility issues, school districts should work with their IT Departments to ensure not only that the website pages are accessible, but also that proper training is given to any staff who add content to the website and that additional content is accessible.

Image of cashbox with money

New Overtime Rules Double Salary Requirements for Exempt Employees

On December 1, 2016, Most Employees’ Annual Salaries Must be at Least $47,476 to Qualify as Exempt from Overtime Pay Requirements

By Kathleen M. Carter

kathleen.carter@mhtlaw.com

On May 23, 2016, the Department of Labor issued new rules regarding the Fair Labor Standards Act (“FLSA”) that almost double the threshold salary requirements for employees to qualify as exempt from overtime pay requirements, raising the minimum salary from $455/weekly ($22,750 annually) to $913/weekly ($47,476 annually) (the “Adjusted Salary Threshold”). The new rules take effect on December 1, 2016, and will result in nearly 4.2 million more people qualifying for overtime pay.  Although these new rules apply to all employers, including units of local government, the FLSA also contains provisions specific to local governments.

Generally, the FLSA requires that overtime compensation be paid at a rate not less than one and one-half times a non-exempt employee’s regular rate of pay for each hour worked in excess of 40 hours per work week. Certain employees, however, are exempt from these requirements and need not be paid overtime.

In order to qualify as exempt, an employee must satisfy a “duties test” and be paid a specified minimum salary. It was this minimum salary requirement that was adjusted by the new overtime rules and with which employers must comply by December 1, 2016.

In addition to the Adjusted Salary Threshold, the new rules: (1) raised the compensation level for “highly compensated individuals” to be considered exempt to $134,004, annually; (2) defined that up to 10% of an employee’s standard salary level can come from non-discretionary bonuses, incentive payments, and commission, paid at least quarterly; and (3) established a mechanism for an automatic 3-year adjustment of the salary threshold.

Not all municipal employees will be affected by the new rules. For example, the new rules will not impact currently non-exempt hourly and salaried employees, who will continue to be entitled to overtime if they work more than 40 hours in a work week. Moreover, the new rules will not affect any employees who are not covered by the FLSA, such as independent contractors.  The FLSA also provides several exemptions unique to public bodies, such as the “small-agency” exemption for law enforcement or firefighter agencies that employ fewer than five such employees.  Otherwise, the new rules will significantly impact many municipal employees previously considered to be “exempt.”

With respect to municipal employees to whom the new rules apply, there are several options that municipal employers may use to comply with the new rules, including:

  • Raise salaries of currently exempt employees to meet the new threshold and maintain their exempt status;
  • Maintain salaries and either prohibit overtime or pay overtime for hours worked over 40;
  • Adjust wages so that when overtime is calculated, average pay remains the same; or
  • Utilize compensatory time rather than cash overtime payments (only applicable to state and local governmental employers and in certain instances).

The penalties can be steep for violations of the FLSA overtime provisions. Accordingly, regardless of the method chosen, municipal employers should review employee compensation and their “duties” classifications to ensure that they are prepared to comply with the new rules.

MHT will soon provide a seminar to public bodies that addresses the new rules and offers guidance for how public bodies should proceed. Additional information related to the new overtime rules can also be found at http://mhtlaw.com/overtime/.

Image of people traveling

New Law Establishes Requirements for Reimbursement of Travel and Entertainment Expenses

Local Government Travel Expense Control Act Necessitates that Local Governmental Bodies Take Action by March 2, 2017

By Richard M. Joseph

richard.joseph@mhtlaw.com

On July 22, 2016, Governor Bruce Rauner signed into law the Local Government Travel Expense Control Act (Public Act 99-604).  The Act expressly prohibits local governmental bodies from reimbursing employees and elected and appointed officials for “entertainment” expenses and establishes requirements that must be adopted in regards to reimbursement for all travel, meal, and lodging expenses of officers and employees.

The Act applies to all units of local government other than those which are home rule, including non-home rule municipalities, park districts, school districts and community college districts; which such governmental bodies are defined in the Act as “Local Public Agencies.”

The Act requires that all Local Public Agencies shall, by resolution or ordinance, regulate the reimbursement of all travel, meal, and lodging expenses of all officers and employees.  The resolution or ordinance is required to specify:

  • The types of official business for which travel, meal and lodging expenses are allowed;
  • The maximum allowable reimbursement for travel, meal, and lodging expenses (which may be exceeded because of emergency or other extraordinary expenses upon approval of the governing body in manner consistent with the adopted policy);
  • A standardized form for submission of travel, meal, and lodging expenses which must be supported by the following (which the Act specifies as the “minimum” required “documentation”):
    • An estimate of the cost of travel, meals, or lodging if expenses have not been incurred or a receipt of the cost of the travel, meals, or lodging if the expense has already been incurred;
    • The name of the individual who received or is requesting the travel, meal, or lodging expense;
    • The job title or office of the individual who received or is requesting the travel, meal, or lodging expense; and
    • The date or dates and nature of the official business in which the travel, meal, or lodging expense was or will be expended.

All documents and information submitted in regards to reimbursement are specifically declared to be “public records” and subject to disclosure under the Illinois Freedom of Information Act.

Adoption of a resolution or ordinance establishing the policy and procedures for reimbursement of travel, meal or lodging expenses must occur prior to June 30, 2017, because Section 10 of the Act specifies that no travel, meal, or lodging expense shall be approved by a local public agency after that date unless regulations have been adopted.  However, and as a practical matter, the policy and procedures will need to be in place by March 2, 2017, since Section 20 of the Act specifies that on or after 60 days after the effective date of the Act, expenses for travel, meals, and lodging of any officer or employee that exceeds the maximum amount allowed under the adopted policy, may only be approved by roll call vote at an open meeting.  Thus, until the policy has been adopted, there is no established “maximum” under the policy and, effectively, all expenses in the interim period from March 2, 2017 to June 30, 2017, require formal action of the governing body.

The Act does not specify or recommend a maximum allowable amount, and, therefore, that is left to the sound discretion of the governing body in establishing the policy.

In addition, on or after March 2, 2017, expenses for travel, meals, or lodging of any member of the governing board or corporate authorities of the local public agency may only be approved at an open meeting of the governing board or corporate authorities of the local public agency.

Finally, the Act specifically prohibits reimbursement for any “entertainment expense” which is defined to include (but not be limited to) shows, amusements, theaters, circuses, sporting events, or any other place of public or private entertainment, unless ancillary to the purpose of the program or event.  The Act does not further identify what is meant by “ancillary to the purpose of the program or event” and, therefore, caution should be exercised.

In light of the Government Travel Expense Control Act it is recommended that all non-home rule municipalities, park districts, school districts and community college districts review their existing policies and procedures for reimbursement of employees and officers travel-related expenses, establish maximum allowable reimbursement amounts, create a standardized form, and adopt the policy and standardized form by resolution or ordinance, all by March 2, 2017.

MHT Regularly Assists with Low Income Housing Tax Credit Projects

Miller, Hall & Triggs, LLC, provides experienced counsel to a number of housing authorities and not-for-profit corporations seeking to develop or redevelop affordable housing through low income housing tax credits throughout Illinois and Arkansas. We regularly work with housing authorities and not-for-profit entities, the Illinois Housing Development Authority, lenders, investors and FHA and HUD to negotiate and close extremely complex housing transactions.

Examples of low income housing tax credit projects we have worked on:

Project Name: Galena Park Terrace, Peoria, Illinois
Galena Park Terrace, an Illinois Not-for-Profit Corporation
Year Completed: 2016
Project Type: Rehabilitation
Units: 127
Units Serving Low-Income:  127
Type of Construction: One bedroom and Studio Apartment Complex
Cost of Development: $20,189,292
IRS Funding: Low-Income Housing Tax Credits
HUD Funding FHA: 221(d)(4) insured mortgage
Financing Structure: Equity – Loans
Current Status: Presently being rehabilitated
Substantially leased while under construction

Project Name: Leisure Acres, East Peoria, Illinois
East Peoria Jaycees Housing Corporation, an Illinois not-for-profit corporation
Year Completed: 2015
Project Type: Rehabilitation
Units: 100
Units Serving Low-Income: 100
Type of Construction: Apartment Complex
Cost of Development: $11,271,000
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  IRP Subsidy
HUD Funding: Project-Based Rental Assistance (PBRA)
Financing Structure: Equity – Loans
Current Status: Construction complete
Fully leased and pending final closeout

Project Name: Lynden Lane
Rock Island, IL Housing Authority
Year Completed: 2015
Project Type: New Construction (demolition and redevelopment of Public Housing)
Units: 55
Units Serving Low-Income: 43
Type of Construction: Single Family and Duplex
Cost of Development: $14,112,000
Public Funding: Illinois Affordable Housing Tax Credits
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
Financing Structure: Equity – Loans
Current Status: Construction complete
Fully leased and pending final closeout

Project Name: Pana Towers
Christian County Integrated Community Services (Illinois)
Year Completed: 2014
Project Type: Rehabilitation
Units: 72
Units Serving Low-Income: 72
Type of Construction: 8 Story Elevator Apartment Building
Cost of Development: $8,238,000
Public Funding: Illinois Affordable Housing Tax Credits (IAHTC),
FHLB Affordable Housing Program (AHP)
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
HUD Funding: RAD/Project-Based Rental Assistance (PBRA)
Financing Structure: Equity – Loans – Grants
Current Status: Rehab complete
Fully leased and pending final closeout

Project Name: Southern Crossing
Pine Bluff, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 65
Units Serving Low-Income: 48
Type of Construction: Single Family
Cost of Development: $10,869,370
Public Funding: HOME, FAF/BMIR
IRS Funding: Low-Income Housing Tax Credits
HUD Funding FHA: 221(d)(4) insured mortgage
HUD Funding:  Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: Clayton Heights
Ft. Smith, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 57
Units Serving Low-Income 35
Type of Construction: Single Family
Cost of Development: $9,259,568
Public Funding: HOME, FAF/BMIR
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  FHA 221(d)(4) insured mortgage
HUD Funding:  Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized 100% occupancy

Project Name: The Meadows
Jacksonville, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 55
Units Serving Low-Income:  41
Type of Construction: Single Family
Cost of Development: $13,191,000
Public Funding: HOME, CDBG
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
HUD Funding: Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: Cascade Gardens
Rock Island, IL Housing Authority
Year Completed: 2011
Project Type: New Construction
Units: 70
Units Serving Low-Income 70
Type of Construction: Multi-Family Special Needs Apartments
Cost of Development: $13,191,000
Public Funding: American Recovery & Reinvestment Act (ARRA)
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  Mixed-Finance
HUD Funding:  Section 8 Project Based Vouchers
HUD Funding:  Tax Credit Assistance Program (TCAP)
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: North Pointe II, Development
Ft. Smith, AR Housing Authority
Year Completed: 2010
Project Type: New Construction
Units: 67
Units Serving Low-Income
Households: 50
Type of Construction: Single-Family – Duplex
Cost of Development: $10,811,336
Public Funding: HOME – CDBG – City of Ft. Smith St. Fund
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: Capital Funds
HUD Funding: Section 8 Project Based Vouchering
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: North Pointe, Development
Ft. Smith, AR Housing Authority
Year Completed: 2007
Project Type: New Construction
Units: 50
Units Serving Low-Income
Households: 40
Type of Construction: Single-Family – Duplex
Cost of Development: $6,511,336
Public Funding: HOME – CDBG – City of Ft. Smith St. Fund
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: Capital Funds
HUD Funding: Unrestricted Section 8 Reserves
HUD Funding: Section 8 Project Based Vouchering
State Funding: State Low-Income Housing Tax Credits
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized Operation 100% Occupied

Project Name: County Estates
Menard County, Illinois Housing Authority
Ownership Type: Scattered Site Rentals
Project Type: New Construction
Year Completed: 2007
Units: 68 Detached Single-Family and Multi-family Rental Units
Units Serving Low-Income Households: 60
Cost of Development: $12,518,000
Public Funding: HUD HOPE VI Demolition, Capital Funds
Low-Income Housing Tax Credits
State Tax Credits
Illinois Affordable Housing Trust Fund
FHLB AHP Program
Conventional Financing
Project Based Section 8 Vouchering
Financing Structure: Grants and Loans
Under Limited Partnership Ownership
Current Status: Stabilized with High Occupancy

Project Name: Oakwood Trace Townhomes L. P.
Champaign County, Illinois Housing Authority
Ownership Type: Limited Partnership
Project Type: Rehabilitation
Year Completed: 2002
Units: 50
Units Serving Low-Income
Households: 39
Cost of Development: $7,200,000
Public Funding: HOME, CDBG, City Utility funds,
FHLB (AHP) Program, LIHTC,
HUD Upfront Grant, Fannie Mae,
Conventional Bank funding
Financing Structure: Grants and Loans under a Limited
Partnership
Current Status: Stabilized with 98% Occupancy

Click here to read testimonials and recommendations with respect to our work on Low Income Housing Tax Credit Projects, or contact Richard M. Joseph to see how we can help you.