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Questions Arise Over DOL’s Shared Employer Liability Rule

Philadelphia employment law attorneys provide counsel on the shared employer liability rule.Shared employer liability continues to be a controversial labor topic, as it affects a wide range of businesses and employees, particularly those who work in staffing and franchise organizations. The Department of Labor (DOL) will be issuing a new policy by the end of the year that would dictate when businesses would be legally responsible for payroll violations, including those pertaining to minimum wage and overtime. While some believe that the DOL does not have the power to make legally binding legislative rules, others believe it is within their power.

According to a senior counsel for the National Employment Law Project, based on the language of the Fair Labor Standards Act (FLSA), the DOL does not have the authority to make the rule legally binding. They can only publish an interpretive rule, which does not carry the same weight as a legally binding rule. An administrator for the DOL Wage and Hour Division commented that the DOL can issue regulations on joint employment issues in order to clarify parts of the FLSA that may not be clear.

Many large corporations, including McDonald’s Corp. and Microsoft, have had claims filed against them saying that they are responsible for labor violations against franchisee and staffing organization employees. Businesses and legislators have been putting pressure on Secretary of Labor, Alexander Acosta to move forward on the policy. However, the impact of the new policy may be limited in court if the DOL is unable to proceed with creating a rule. Acosta has been quoted saying that agencies should not use interpretive guidance documents to take short cuts and avoid going through the formal rulemaking process.

Defining Joint Employment

While the FLSA allows the DOL to draft regulations for certain issues, including overtime exemptions and child labor issues, it does not give them the power to define joint employment. Therefore, unless the language in the FLSA changes, any ruling put out by the DOL will not be legally binding.

In a court of law, legislative regulations carry more weight in the courtroom than interpretive regulations. According to the former administrator for the DOL’s Wage and Hour Division, a legislative regulation may be challenged over minimum wage and overtime disputes, which is when the court may be asked to apply the regulation. The test of a rule will depend on the how the court interprets the rule and the level of deference it gives. Regardless of how the courts view the DOL’s joint employment regulation, it will have an impact on the agency’s ability to enforce minimum wage and overtimes requirements. It will provide much-needed clarity both for internal Wage and Hour enforcement officers and the business community.

Philadelphia Employment Law Attorneys at The MacMain Law Group LLC Provide Counsel on FLSA Issues

To discuss your employment law matter with an experienced employment attorney at The MacMain Law Group LLC, call us today at 484-318-7106 or contact us online. Our offices are conveniently located in West Chester, where we serve clients throughout Pennsylvania.

The Importance of Company Sexual Harassment Policies

Employment law lawyers offer excellent counsel for companies regarding harassment policies.Over the last year, sexual harassment and the common circumstances surrounding it have been, for lack of a better word, eye-opening. Though the idea of sexual harassment is nothing new, the prevalence of the issue in the age of the #MeToo movement has been nothing short of impactful.

Now, companies are focusing more on how to best combat the problem. With out-of-date policies, companies are learning more and more that they must somehow forge a path for a new standard.

The Role of Human Resources

Part of the bigger problem surrounding policy in the workplace begins with the emphasis placed, or not placed, on the important role of human resources. Though many companies have tended to view the department as a necessary afterthought, its focus has long been on administering benefits and meeting legal requirements; not dealing with issues of sexual harassment.

A law professor who specializes in employment discrimination at City University of New York, explains that not only is it a legal and moral issue, but a financial mistake as well. Those who are talking about and dealing with sexual harassment are not focused on and performing optimally. That is why it is important to properly invest in human resources and find ways to empower the department.

In addition, there are other initiatives that can be implemented into the corporate culture to make harassment less likely to occur.

Create Channels for Reporting Outside Human Resources

Frequently, middle managers are the ones who fall responsible for dealing with allegations of sexual harassment. The issue with this is that while they do carry some weight, they do not have enough power to truly eliminate the issues.

Though they are aware that they can report allegations to HR, if an employee is reluctant to file an official claim with the department, the middle manager’s hands are often tied. That is why allegations often stop with these managers.

It is advisable for companies to put in writing their expectations surrounding reporting. If a manager is aware of an issue, but fails to report it, since the manager is considered to be a representative of the company, the company may still be found liable.

By designated select individuals to become well-versed in the issues surrounding sexual harassment and company policy, these individuals can be easily accessed if an allegation occurs.

Finally, sometimes individuals do not want to file a formal complaint; rather, they are just looking to express their disdain for how a situation occurred. This is why having an employee outside of HR allows other employees to assess whether they wish to file.

Put Non-Retaliation Policies in Writing

A major deterrent for coming forward to report sexual harassment is workplace retaliation. Though the law prohibits such conduct, it is all too common. Often, after a report is filed, the employee is victimized all over again, suffering professionally as a consequence.

The best option is to adopt a written non-retaliation policy, which spells out what retaliation is, and what the consequences of such retaliation would be.

Invest in Proper Training – Especially for Bystanders

Though sexual harassment training is a good idea, it is often only conducted to check off legal boxes. It frequently paints it out to be a black-and-white issue, though that is certainly not the case.

Bystander intervention training teaches employees what to do should they witness inappropriate behavior. It teaches them things such as conflict management techniques, including de-escalation and redirection techniques

Treat Each Case Separately

It is important for companies to understand and to make known that not all behaviors, regardless of being inappropriate, are considered on the level of sexual harassment. The real focus needs to be on the workplace climate and overall company culture.

If you have been involved with a case surrounding the sexual harassment of a company employee, it is extremely important to take the proper steps to handle the situation correctly. Contact us online for a consultation with our employment law lawyers or call The MacMain Law Group LLC at 484-318-7106.

Starting a Charter School

West Chester education lawyers provide expert guidance for those involved with starting a charter school.Cuts in federal, state, and local funding for public schools across the country have placed limits on the quality of education districts can offer. Transportation problems, aging facilities, redistricting, and intense pressure to compete with private schools have forced public school systems to re-evaluate their mission and educational philosophies. Reduced wages, benefits, and retirement plans for educators have resulted in an increasing shortage of qualified teachers and administrators.

Disillusioned parents and frustrated educational administrators are taking matters into their own hands by opening charter schools that provide a vehicle for specialized educational programs and redefined goals. Over 6,000 charter schools have opened across the country over the past 15 years, and the trend is showing no signs of slowing down.

The National Alliance for Public Charter Schools (NAPCS) claims there are over one million children on waiting lists in the United States, hoping for the opportunity to be accepted into these schools. Forty-two states and the District of Columbia have already created charter school legislation, but the standards vary greatly from state to state.

Getting a Charter School Started

All charter schools first start with an idea and a vision. Getting those ideas and visions established into a formalized charter school takes work, perseverance, and commitment from a team of dedicated professionals that share the same ideals.

Here are the basic steps necessary to open a charter school in the United States.

The Petition: In the initial stage of creating a charter school, a petition must be submitted to the local or county Board of Education. The petition must specifically outline the school’s vision, mission, curriculum design, hiring practices, discipline approach, school structure, and communication plan.

This step typically involves intense research, collaboration, and lots of revision before submission.

Board of Education and Community Approval: Once the Board of Education has accepted the petition, it is time for a public hearing. The Board will question what is written in the petition, may request evidence to support the petition, and can require revisions before finalizing their decision.

A public hearing for the community follows and gives parents, businesses, and residents the chance to voice concerns and support for the charter school. Those submitting an application for a charter school must be prepared to answer a myriad of questions from educators, as well as the community.

Implementing the Plan: Once the Board has approved the charter school, the hard work begins. Securing grants will provide the funds necessary to begin finding a location for the school, buying materials to support the curriculum, hiring teachers, and recruiting students. This process can take months to several years to complete.

With minimal funding, marketing becomes a challenge, but utilizing local news stations, newspapers, and social media forums can help get the word out about your school.

Accountability: Once a charter school has been established, proof of learning, as well as plans for continued success, must be provided to the local Board of Education. As charter renewal requirements vary from state to state, charter school boards and administrators must ensure that they are in compliance with their state’s laws.

The West Chester education lawyers at The MacMain Law Group LLC provide legal counsel for all your educational law issues. Call us at 484-318-7106 or contact us online to schedule a consultation today. Our West Chester offices serve clients throughout Philadelphia, Chester County, and Pennsylvania.

The United States Supreme Court Rules that the ADEA applies to all Governmental Entities regardless of Size

Philadelphia age discrimination lawyers explain the ADEA ruling by the supreme court.In resolving a split among the circuits, the Supreme Court of the United States held that the Age Discrimination in Employment Act (ADEA) is applicable to state and local government entities, regardless of how many employees they have. The Court held that all government entities are considered employers under the ADEA, not just those that employ 20 or more employees. If you are a small local government entity, you will need to take this into consideration when making employment decisions that affect those over the age of 40.

Case Background

In Mount Lemmon Fire District v. Guido, Justice Ginsburg opined that the ADEA establishes “separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and states or political subdivisions with no attendant numerosity limitation.” The employer, Mount Lemmon Fire District, is an 11-employee political subdivision of the state of Arizona. The group laid off two firefighter captains who were over the age of 40 and the oldest full-time employees. The pair then sued the Fire District under the ADEA, which protects employees and applicants from discrimination on the basis of age. The ADEA applied to private employers with 20 or more employees, and applies to states and political subdivisions, but the language that relates to state employees does not mention the 20-employee mandate.

Ginsburg noted that originally, public employers were excluded from coverage by both the ADEA and Title VII of the Civil Rights Act of 1964, a broader anti-discrimination law, which bars employment discrimination based on race, color, religion, sex, and national origin. In 1972, Congress extended Title VII to public employees, providing the same threshold that applies to private employers under the law to cover only those that employ a certain number of people.

In its argument, the Fire District held that it was not subject to the ADEA because it did not employ 20 or more employees. The matter went to the Ninth Circuit Court of Appeals after the district court agreed. The Ninth Circuit reversed the ruling, stating that the meaning of the statute is unambiguous, and that it applies to all state employers, no matter how many employees they have. Other federal courts of appeals have interpreted the language differently, resulting in the Supreme Court agreeing to review the Fire District’s appeal.

Potential Impact of the Ruling

This increases the risk of liability faced by government agencies as it may inspire a greater number of age discrimination cases to be filed. However, in politically divisive times, there may be many developments that will yield far more polarizing results.

The MacMain Law Group LLC has a broad range of experience successfully resolving complex situations like the above ADEA ruling, and we can help to advocate for and protect your rights. For help and guidance toward making the best decisions, please call 484-318-7106 or contact us online today for an evaluation of your case. Our office is conveniently located in West Chester, Pennsylvania, and we serve clients throughout the Commonwealth.

How to Properly Break Up with Your Business Partner

Pennsylvania employment attorneys offer advice on the proper way to end your business partnership.The numbers speak for themselves; the odds are not in a partnership’s favor. The partnership breakup rate can even be 20-30 percent higher than that of divorce rates.

As important as it is to create a partnership agreement, dedicating time to creating a dissolution strategy can be a lifesaver. This strategy will come in handy in the event of death, a life-changing injury, or personal differences.

It is important to know what you are to do, should that situation ever arise, instead of trying to make decisions in the heat of the moment when emotions are running high.

There are certain warning signs to look for that may indicate that your business partnership may be on the brink of failure:

Partners Have Vastly Different Working Styles

When partners have different working styles, the unity they once felt to accomplish a common goal can easily diminish. When it comes to things such as whether to maintain strict schedules or work when the mood strikes, it is important to be on the same page as your partner.

If partners have very different working styles it can make tough situations even tougher.

One of the Partners is Not Carrying Their Weight

As with any relationship, when responsibilities are not evenly distributed, it can create stress, and in many cases resentment. If one partner is taking on the brunt of operational management while the other is simply enjoying the perks of the business, this can cause a strain in the relationship.

Also, as in any relationship, communication is imperative to maintain a healthy balance. The most important thing is for a partner to speak up and work out issues.

When a partner feels as though they are unable to express themselves, the damage may be irreparable. As such, it is imperative to keep the lines of communication open.

Partners Greatly Disagree on Pertinent Issues

It would be difficult for any relationship to work if all parties involved do not take the steps to effectively collaborate; compromise is key. When partners find that compromise has become very difficult to obtain, simple disagreements can lead to major operational issues.

Disagreements involving finances, customer service, and personnel can cause the partnership to further fracture.

If you recognize that a partnership is beginning to fail, it is extremely important to ensure that you end the relationship in a manner that will not prove detrimental to any parties or to the business, should it remain open.

If you and/or your partner reach the point of no return, these tips can help you to keep your split as professional as possible:

Communicate When You Feel Calm

It is perfectly human to feel hurt, betrayed, or angry in the midst of a business breakup. While you have every right to feel as you feel, it is important to avoid communicating with anyone related to the business until the pure emotional reaction has blown over and you are capable of separating emotions from business decisions.

Determine Priorities

Evaluate the outcome that will make you happiest five or ten years from now. Keeping tax liabilities, personal finances, and professional goals in mind, it is important to consider how you may be impacted by a buyout or other solution. This must be done prior to considering any terms not already in your dissolution plan.

Accept Help

Certain situations in life are cause for seeking professional help. The dissolution of a partnership may just be one of them. The complexities associated with creating a partnership are as apparent when dissolving one.

By securing the right help, you will receive advice on things such as what to look for and when to finalize decisions.

It is necessary to protect your interests prior to acting on any exit strategy. This may require a revisit of the partnership agreement, as understanding is key. For help in making the right decisions for you, call the Pennsylvania employment attorneys at MacMain Law Group LLC at 484-318-7106 or contact us online today. With our office in West Chester, Pennsylvania, our attorneys serve clients throughout Chester County and Philadelphia.

Qualified Immunity

West Chester civil rights defense lawyers know how to defend you under qualified immunity.Qualified immunity is a type of immunity used to shield government officials from liability for actions taken in the line of duty, so long as the actions did not violate rights clearly defined by established law. It is a defense available to public officials, both state and federal, including law enforcement officers. Qualified immunity was created by the Supreme Court to focus trials on the objective reasonableness of the contested action of public officials, rather than the subjective intent of that official at the time of the action.

One of the goals of qualified immunity is to protect government officials, including law enforcement agents, from frivolous lawsuits stemming from necessary actions performed as part of their work. It allows these officials to execute their duties without the fear of being sued by individuals who may suffer harm as a result.

The key to the qualified immunity defense is whether the contested action was reasonable. In other words, the court must decide if a reasonable person would have known that their actions violated a clearly established law. Because qualified immunity removes the burden of determining the subjective state of the government official, the prosecution no longer must prove malice on the part of the defendant.

The Supreme Court’s Support of Qualified Immunity

Since the establishment of qualified immunity as a defense, the Supreme Court has been supportive of its use by police officers to defend actions taken in dangerous and intense situations. The court has also recognized the right of public officials to immediate appeal when a trial court judge issues a denial of their qualified immunity defense. An immediate appeal spares the defendant from the burden and expense of protracted discovery and trial.

There are numerous examples of rulings by the court that favor law enforcement. In the 1986 decision Malley v. Briggs, the court wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”.

A year later, in Anderson v. Creighton, the Supreme Court ruled in favor of a federal law enforcement officer who thought he had probable cause to conduct a search without a warrant, but was mistaken, and used qualified immunity as his defense when he was sued for damages under the Fourth Amendment. Here, the court said that it had already recognized that it is inevitable that law enforcement officers will reasonably and mistakenly conclude that probable cause is present when making searches, and that officers should not be held personally liable for them.

The court has also affirmed use of the qualified immunity in multiple cases concerning the use of deadly force by police officers; thus making it clear that defendants whose attorneys have the knowledge and experience to make use of the qualified immunity defense, where applicable, will have a distinct advantage.

For information on how our governmental entity representation and civil rights defense practice can help you, call The MacMain Law Group LLC at 484-318-7106 or contact us online. With our office in West Chester, Pennsylvania, our attorneys serve clients throughout Chester County and Philadelphia.

The Future of Non-Compete Agreements

Pennsylvania employment lawyers discuss the proposed bill dealing with non-compete agreements. Shortly before the close of 2017, the Pennsylvania legislature introduced a bill that would ban non-compete agreements in employment contracts. Under Bill 1938, known as the “Freedom to Work Act,” non-compete agreements would be not only unenforceable, but null and void.

The bill has several stated goals, including lowering the unemployment rate, enabling an increase in income for highly-skilled employees, allowing employees to make a living wage and provide for their families by “maximizing their talents,” and allowing businesses to hire workers of their choice. With this bill the Commonwealth hopes to attract high-tech companies and discourage workers from leaving the state for better opportunities.

Additionally, the bill intends to promote the following:

  • Increased wages and benefits
  • Unrestricted trade and mobility of workers
  • Innovation and entrepreneurship

Pennsylvania joins a trend of proposed legislation to limit non-compete agreements that includes New Jersey, Maryland, New York, Massachusetts, Missouri, and New Hampshire among others. In California, North Dakota, and Oklahoma, legislation has already passed that bans almost all forms of non-compete agreements.

Definition of Non-Compete

The Freedom to Work Act defines a non-compete agreement broadly as “[a]n agreement between an employer and employee that is designed to impede the ability of the employee to seek employment with another employer.” As there is no mention of non-solicitation agreements, it seems it would still be possible for an employer to enter into such an agreement with employees.

Exceptions are made for agreements deemed reasonable that concern the sale of a business, and those that involve the dissolution of a partnership or limited liability company. Any non-compete agreements that existed before the effective date of the new law would also be exempt.

Provision for Attorney’s Fees

Included in the proposed legislation is a provision that cases concerning Pennsylvania residents shall be decided in Pennsylvania state court, under Pennsylvania law. There is also a provision that awards attorney’s fees and damages, including punitive damages, to employees who sue their employer over a non-compete agreement and win. This essentially provides employees with incentive to sue, should the bill be enacted, and they find themselves subject to a non-compete clause.

Changes at the Federal Level

There is also proposed legislation at the federal level that seeks to reform the misuse of non-compete agreements. Employers must watch carefully for any changes in state and federal legislation, and are advised to be prepared to use other ways to protect proprietary information. Non-compete agreement forms should be reviewed regularly, to ensure they comply with the law in all jurisdictions where they are in use.

The MacMain Law Group LLC is well versed in the complexities of Pennsylvania employment law and can provide you with highly skilled representation. Call 484-318-7106 or contact us online to schedule a consultation with one of our experienced attorneys. From our office in West Chester, our experienced attorneys serve clients throughout Chester County and Philadelphia.

The Pros and Cons of Recording Police Activity

West Chester civil rights lawyers offer the pros and cons of recording police activity.With the political climate more charged than ever, and an extreme divide between those who support or oppose police officers and question their conduct, one of the things that has been suggested to help improve this dissonance is to equip all police officers with body cameras.

There are both advantages and disadvantages to this technology.

Advantages of Police Body Cameras

The following are examples of the advantages to police forces and citizens provided by the use of body cameras:

A Clearer Picture of What Has Occurred

Body cameras help to create a clearer picture of what transpired. It is much easier to demonstrate what occurred when there is footage of it – even if it is not perfect.

Whereas police reports require the imagination of the jury, video footage can be less subjective.

Improved Behavior

From a young age, we tend to behave better when we know that we are being watched. The use of a body camera not only influences citizens who know that they are being watched to behave well, but also influences the officers wearing them, as they know that their conduct will also be captured.

These videos additionally allow for officers to analyze their interactions and use that information to improve where necessary.

They Do Not Get in the Way

Weighing less than a quarter of a pound, wearing body cameras is not too intrusive for police officers that are used to already wearing a lot of bulky equipment. The smallest of these cameras is about the size of a lipstick and can be placed in a variety of locations on the officer.

They Help to Reduce Complaints

Many departments who have already implemented body cameras are reporting positive results from them. There seems to be a reduction in complaints and a decrease in force.

With less disputes, this saves the department a lot of time and resources necessary to resolve any civil litigation.

Disadvantages of Police Body Cameras

The following are examples of the disadvantages to police forces and citizens provided by using body cameras:

Upfront Costs of the Cameras

With $399 – $599 price points per unit, a lot of law enforcement agencies are unable to afford these body camera systems. This is especially true for those departments that are already under tight budgets.

Concerns with Privacy

These body cameras raise the issue of our expectation of privacy, especially when dealing with some extremely sensitive situations. To keep such issues clear, police departments will need to work with advocacy groups, including the American Civil Liberties Union (ACLU) to develop policies that ensure the public’s rights that are protected under the Fourth Amendment.

A Method for Storing Evidence

The chain of custody for evidence has always been important, to ensure that nothing has been changed or tampered with in any way. Adding video may require another investment into how to properly store these recordings. It may be difficult to prove the chain of custody in court.

Difficulty with Adjusting to New Changes

Change is never easy, but for those who have been on the job for many years, it may become very difficult for officers to change how they conduct their performance. It is likely that the implementation of such body cameras will be met with a certain level of resistance.

Body cameras are not the only recording technology being employed to add accountability. In addition to cameras in the police cars themselves, new audio and video technology attached to police weapons is being developed and deployed, to explore situations involving the use of deadly force.

If you represent a police officer who has been involved in any type of dispute, it is important to fight for the justice that they deserve. At The MacMain Law Group we have experience in representing, counseling, and defending public officials and law enforcement in the Philadelphia, West Chester, and Chester County areas, and can help you as well. For more information, contact a civil rights defense attorney at The MacMain Law Group, LLC by calling 484-318-7106 or submit an online inquiry.

Church Security Awareness Month

The MacMain Law Group offers security awareness and legal counsel for religious institutions.October is Church Safety and Security Month, a great time to make sure that your church or other religious institution is adequately protected.

Churches used to stay open around the clock. But the violent events of recent history have changed that tradition. Now, churches must be safeguarded against shooters, robbers, and other criminals.

Here are some tips for keeping your church safe during October and throughout the year.

Church Security Measures

The first step in keeping your congregation safe is to conduct a church security assessment, to identify potential threats, and develop plans of action. Be sure to know your local neighborhood, so you can identify potential issues.

Here are some things to consider when developing a security plan:

Church access: If there are many entrances to the church, consider having only one open during business hours, and securing the additional entrances with heavy doors, locks, and security windows.

Implementing a procedure for giving out and collecting keys to the church may be helpful in preventing former staff or members from having easy access to the church and any valuables inside.

Also, be sure to lock up valuables such as microphones, televisions, and computer equipment, to protect against theft.

Dangerous property conditions: If your church is having repairs or remodeling done, be sure that the proper warning signs are posted, and that work is completed in a reasonable amount of time.

Churches must expediently address known hazards and keep the premises reasonably safe for churchgoers and staff. If someone is injured on your property due to your negligence, they may file a premises liability lawsuit, which may subject you to responsibility for their injuries.

Armed security: Many churches do not want to have armed security on the premises. However, it may be wise to consider nowadays. There were 346 mass shootings in the United States in 2017 alone, according to the not-for-profit organization Gun Violence Archive.

According to the Department of Homeland Security (DHS), 95 percent of active shooters do not stop shooting until someone who is armed arrives. Uniformed, off-duty police officers, or others with training in law enforcement or the military, are often good choices when it comes to armed security guards.

Screening employees/volunteers: Churches are often at the center of allegations of abuse. It is important to develop a thorough screening process for all potential workers or volunteers.

Conduct background and reference checks on anyone who will be working with children, and implement a waiting period for new members. Also, have a policy in place that requires two unrelated adults to be present with children at all times. That way, children are never left alone with one staff member or volunteer.

Emergency preparedness: It is crucial to have emergency plans of action, in the event that your church is the target of a violent crime. Church members should be informed that there are security measures in place. Further, they should be advised on what to do if there is a crisis.

DHS recommends forming a collaborative planning team to address safety risks, determine goals and objectives, and implement and maintain emergency operations plans.

For more information on how to keep your church secure, contact The MacMain Law Group, LLC by filling out an online inquiry or calling us at 484-318-7106. From our office in West Chester, our experienced attorneys serve clients throughout Chester County and Philadelphia.

Sexual Misconduct on College Campuses

Pennsylvania education lawyers advocates for organizations facing sexual misconduct allegations.Sexual misconduct occurs on college campuses every day. Most recently, several faculty and staff at Ohio State University, the University of Southern California, and Michigan State University have been accused of failing to protect their students from the sexual misconduct of coaches and campus physicians. While most universities have developed their own internal method for handling claims of sexual misconduct, there has been little federal guidance governing sexual misconduct on college campuses. This may soon change.

Handling of Sexual Misconduct Charges

Between 2011 and 2017, the U.S. Department of Education conducted over 450 Title IX investigations. In 2011, the Obama Administration’s Department of Education drafted a Dear Colleague letter, which addressed a perceived failure to protect victims of sexual assault on college campuses. Following the distribution of the Dear Colleague letter to over 4,000 colleges and universities, many schools amended their policies to be more victim-friendly. In some cases, school administrations followed the letter’s advisement to adopt a preponderance of evidence standard of proof, which is the lowest legal standard, requiring a jury find over a 50 percent likelihood of guilt against the accuser.

Proposed Changes in Sexual Harassment Policies

Secretary of Education, Betsy DeVos, recently announced proposed changes affecting the way many higher education institutions handle sexual misconduct complaints. Under the suggested federal rules, schools can adopt their own higher evidentiary standards and make it much more difficult for a victim of sexual harassment to prove his or her case.

Those accused of committing sexual misconduct would have greater procedural protections under the proposed changes, including the right to use mediation to resolve sexual misconduct claims. Previously, mediation of sexual misconduct claims was deemed by some to be too traumatic for the victims, who would be subjected to direct and cross examination by the alleged abuser.

The proposed regulations also adopt a narrow definition of sexual harassment as being unwelcome conduct based on sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity. Only when a school has actual knowledge of sexual misconduct would there be potential liability. Another significant change is that the college or university has no duty to investigate any incidents occurring off-campus, such as in fraternity houses, even if such incidents involve students.

Limiting the Liability of Colleges and Universities

The draft proposal would impose liability on higher education institutions only in those cases where a formal complaint of sexual misconduct has been filed against the school. This eliminates liability when a sexual assault victim only reports the incident to a dormitory residential advisor. A school would be liable for failure to respond to sexual misconduct only if the administration’s response is clearly unreasonable, considering known circumstances.

Critics believe the changes would make it more difficult for the victims of sexual harassment to prove their cases and easier for colleges and universities to avoid legal liability. Although there would be a public comment period regarding the proposed rules, the changes could go into effect without requiring a Congressional vote.

If your organization is facing sexual misconduct allegations, contact the experienced Pennsylvania education law lawyers at The MacMain Law Group LLC are ready to assist you. For more information, contact us at 484-318-7106 or contact us online. Located in West Chester, Pennsylvania, we serve clients from the surrounding areas.