IN THIS ISSUE:
PAGE
2 Reminder: Changes to PERA, ELCRA Go Into
Effect February 13
4 PERA Request and FOIA Request – What is the
Difference?
6 Court of Appeals: Student Questioned by Police at
School Should Have Been Read Miranda Rights
9 Sixth Circuit Set to Hear Challenge to School
District’s Transgender Anti-Harassment Policy
10 Dental Exams Required for Incoming
Kindergarteners for 2024-2025 Year
11 Michigan Takes Additional Steps to Address
Teacher Shortage
13 Proposed Independent Contractor Rules Faces
Legal Hurdles
EDUCATION LAW
UPDATE
COLLINS & BLAHA, P.C.
ATTORNEYS AT LAW
WINTER 2024
COLLINS & BLAHA, P.C.
31440 Northwestern Hwy,
Suite 170
Farmington Hills, MI 48334
(248) 406-1140
www.collinsblaha.com
Gary J. Collins
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William J. Blaha
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John C. Kava
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eschultz@collinsblaha.com
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.com collinsblaha.com
REMINDER: CHANGES TO PERA, ELCRA
GO INTO EFFECT FEBRUARY 13
Governor Gretchen Whitmer recently signed
into law a number of public acts (“PA”)
amending various statutes that significantly
affect the obligations of public school districts.
The amended statutes include the Public
Employment Relations Act (“PERA”) and the
Elliott-Larsen Civil Rights Act (“ELCRA”).
These amendments will take effect on
February 13, 2024.
PERA Amendments Eliminate Many
Prohibited Topics of Bargaining
In 2010, Michigan adopted revisions to PERA
that departed from national norms of labor law,
including adding prohibited subjects of
bargaining. This offered significant protection
for school districts’ unilateral actions regarding
layoff and recall, teacher discipline, teacher
placement, and teacher and administrator
evaluations. This year, the Michigan Legislature
modified PERA to eliminate many of the
revisions implemented in 2010. The following is
a comprehensive list of changes to the PERA
effective on February 13, 2024:
PERA Changes – PA 115 and 143 of 2023 –
Repeal of Certain Prohibited Topics
PA 115 and PA 143 collectively eliminate the
following from the list of prohibited topics of
bargaining under PERA:
• Teacher placement policies.
• Policies regarding personnel decisions
when conducting a reduction, elimination,
recall, hiring, or any related decision.
• The performance evaluation system.
• Policies regarding the discharge or
discipline of a teacher.
• The format, timing, or number of classroom
observations.
• Policies regarding the method of
compensation, including decisions about
how an employee performance evaluation
may be used to determine performance-
based compensation.
• Required notification to parents and legal
guardians regarding student placement in a
classroom with a teacher rated as ineffective
for two consecutive years.
• Public employer’s decision to enter into an
intergovernmental agreement to consolidate
services, including:
o Procedures for obtaining a contract
for the transfer of functions and
responsibilities under such
agreement, and
o The identities of any other parties
subject to the agreement.
• The decision to contract with a third party
for non-instructional support services,
including:
o The procedures for obtaining such a
contract,
o The identity of the third parties, and
o The impact of the contract for the
services on individual employees or
the bargaining unit.
Accordingly, upon the effective date of PA 115
and PA 143, the foregoing topics will become
mandatory topics of bargaining. Employers
should prepare to discuss these topics during
negotiations, as it is expected that bargaining
“Employers should prepare to discuss
these topics during negotiations, as it
is expected that bargaining units will
issue demands to bargain once the
acts go into effect.”
units will issue demands to bargain once the acts
go into effect. PA 115 and PA 143 will go into
effect on February 13, 2024.
PERA Changes – PA 113 of 2023 – Frozen
Wages and Benefits
Currently, section 15b of PERA provides that (1)
wages and benefits are required to be “frozen”
during contract negotiations; (2) after the
expiration date of a collective bargaining
agreement (“CBA”) and until a new one is in
place, a public employer is prohibited from
paying wages or providing benefits at a level or
amount greater than those in effect on the
expiration of the CBA; (3) wages and benefits
under a new CBA cannot be made retroactive to
the expiration date of the former CBA; and (4)
employees are responsible for any increased
costs of maintaining insurance benefits after a
CBA expires.
PA 113 of 2023 repeals section 15b of PERA
pertaining to freezing wages and benefits.
Therefore, the requirements in section 15b of
PERA will no longer be in place. The repeal will
take effect on February 13, 2024.
PERA Changes – PA 114 of 2023 – Employer
Deduction of Union Dues
Current law prohibits public school employers
from using public school resources to assist a
labor organization in collecting dues or services
fees from employee wages.
PA 114 removes the prohibition pertaining to
collecting dues and services fees. Beginning on
February 13, 2024, a public school employer is
permitted to deduct union dues or service fees
from an employee’s paycheck.
ELCRA Amended to Prohibit Sexual
Orientation, Gender Identity and Expression
Discrimination
On March 16, 2023, Governor Whitmer signed
PA 6 of 2023 into law. PA 6 amends ELCRA to
prohibit discrimination on the basis of sexual
orientation and gender identity or expression.
The act includes provisions specific to both the
employment context and the school
environment. The act will go into effect on
February 13, 2024. With respect to employers,
the act provides:
(1) An employer shall not do any of the
following:
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate
against an individual with respect to
employment, compensation, or a term,
condition, or privilege of employment,
because of religion, race, color,
national origin, age, sex, sexual
orientation, gender identity or
expression, height, weight, or marital
status.
(b) Limit, segregate, or classify an
employee or applicant for
employment in a way that deprives
or tends to deprive the employee or
applicant of an employment
opportunity or otherwise adversely
affects the status of the employee or
applicant because of religion, race,
color, national origin, age, sex, sexual
orientation, gender identity or
expression, height, weight, or marital
status. [MCL 37.2202 (emphasis
added).]
Under the Act, an employer is defined as “a
person who has 1 or more employees, and
includes an agent of that person.” MCL 37.2201.
Further, the act states, in pertinent part:
An educational institution shall not do
any of the following:
(a) Discriminate against an
individual in the full utilization
of or benefit from the institution,
or the services, activities, or
programs provided by the
institution because of religion,
race, color, national origin, sex,
sexual orientation, or gender
identity or expression.
(b) Exclude, expel, limit, or
otherwise discriminate
against an individual seeking
admission as a student or an
individual enrolled as a
student in the terms,
conditions, or privileges of the
institution, because of religion,
race, color, national origin, sex,
sexual orientation, or gender
identity or expression. [MCL
37.2402 (emphasis added).]
Under the Act, an educational institution is
defined as:
a public or private institution, or a
separate school or department
thereof, and includes an academy,
college, elementary or secondary
school, extension course,
kindergarten, nursery, local school
system, university, or a business,
nursing, professional, secretarial,
technical, or vocational school; and
includes an agent of an educational
institution. [MCL 37.2202.]
In addition, PA 45 of 2023 amended ELCRA to
prohibit discrimination on the basis of traits
historically associated with race, including hair
texture and protective hairstyles such as braids,
locks, and twists. PA 45 amended the definition
of race as follows:
“Race” is inclusive of traits
historically associated with race,
including, but not limited to, hair
texture and protective hairstyles.
For purposes of this definition,
“protective hairstyles” includes, but
is not limited to, such hairstyles as
braids, locks, and twists. [MCL
37.2103.]
PA 45 went into effect on June 15, 2023.
If you have any questions regarding changes
to PERA or ELCRA, please contact our
office.
PERA REQUEST AND FOIA REQUEST –
WHAT IS THE DIFFERENCE?
As public bodies, Michigan school districts
frequently receive Freedom of Information Act
(“FOIA”) requests for information and
documents pertaining to the school district.
These information requests are governed by
Michigan’s Freedom of Information Act, MCL
15.231 et seq. Any individual may request public
records from a school district, and the individual
“has a right to inspect, copy, and or receive
copies of the requested public record of the
public body.” MCL 15.233(1). Many districts
have formalized procedures and routinely handle
FOIA requests. However, as a public body who
negotiates collective bargaining agreements with
various unions, school districts are also subject to
the Public Employment Relations Act (“PERA”),
MCL 423.201 et seq. The purpose of PERA is to
protect the rights of public employees and help
govern the relationship between public
employers and their employees. As such, PERA
makes it unlawful for a public school district “to
refuse to bargain collectively with the
representatives of its employees,” such as a
teacher’s union. MCL 423.210(1)(e).
The Michigan Employment Relations
Commission (“MERC”) is tasked with resolving
labor disputes involving school districts and their
public employees. For a school district to satisfy
its bargaining obligation under PERA, MERC
cases have continuously held that an employer
must supply in a timely manner requested
information which will permit the union to
engage in collective bargaining and to police the
administration of the contract. See Ecorse Public
Schools, 1995 MERC Lab Op 384; City of
Pontiac, 1981 MERC Lab Op 57; Wayne County
and American Federation of State, 11 MPER
29022 (1997).
Therefore, school districts may
receive “PERA requests for
information” from union
leadership, especially during
negotiations of a new collective
bargaining agreement. To comply
with PERA, a school district is
required to provide bargaining unit
representatives with requested
information if it will reasonably allow the union
to engage in collective bargaining. Typical
information that is requested by a union includes:
• Personal information of bargaining unit
members, such as email addresses, cell phone
numbers, and home addresses.
• Information relating to the terms and
conditions of employment, including:
o Wages.
o Job descriptions.
o Other relevant information pertaining
to bargaining unit employees.
It should be noted that an employer is not
required to provide the union with information
which it does not possess; however, where the
union’s request entails compiling specific
information from data in the employer’s
possession, the employer must, at the minimum,
grant the union access to its files. If the union
requests information pursuant to PERA that is not
maintained by the school district in the form
requested, the school district may charge the
union the cost of compiling the information in the
form requested. However, the school district
must bargain in good faith with the union over
this charge.
Additionally, PERA does not contain any
prescribed timelines for when a school district
must respond to a PERA request. This is contrary
to a FOIA request, wherein a
school district is obligated to
respond to the requester within five
business days. When responding to
a PERA request, the school district
has a duty to provide the requested
information in a timely manner. A
refusal or unreasonable delay in
supplying relevant information
could result in an unfair labor
practice. MERC has not articulated
the precise time for employers to respond to
information requests. However, it has found
violations of PERA in cases where the delay has
ranged from 2 to 3 months to 9 months.
In the alternative, a union may present a school
district with a FOIA request for public records, as
an ordinary citizen may make such a request. It is
important to remember that a PERA request for
information is separate and distinct from a FOIA
request. Therefore, school districts should
contact their legal counsel if they are unsure how
to handle PERA requests from union
representatives.
Please do not hesitate to contact our office if
you have any questions regarding PERA
requests.
“…PERA does not contain any
prescribed timelines for when a
school district must respond to
a PERA request. This is
contrary to a FOIA request,
wherein a school district is
obligated to respond to the
requester within five business
days.”
COURT OF APPEALS: STUDENT QUESTIONED
BY POLICE AT SCHOOL SHOULD HAVE BEEN
READ
MIRANDA
RIGHTS
The Michigan Court of Appeals recently
considered whether police should have given a
student Miranda warnings before being
questioned at school regarding an investigation
of a shooting threat. The Miranda warnings and
rights are given in Miranda v Arizona, 384 US
436 (1966), in which the United States Supreme
Court ruled that police must inform a person of
their constitutional rights before a custodial
interrogation. The Michigan Court of Appeals
held in In re NC that Miranda warnings were
required before police questioning a student in
connection with the investigation of a threat.
Unpublished per curiam opinion of the Court of
Appeals, issued November 21, 2023 (Docket No.
361548).
Background
At the start of the opinion, the Court noted that
the Oxford High School shooting occurred nine
days before the events surrounding the decision
took place in Munising, Michigan. Id. at 1. The
Court took into consideration, along with several
other factors, the timing of the following events,
since they shortly followed the Oxford High
School shooting. Id. at 3.
Facts
A junior high school student in Munising
discovered a potential shooting threat note in a
school bathroom. The police were contacted. The
superintendent, principal, and police chief placed
the school on lockdown. During this time, a video
was shared with the school of a student, NC,
“holding a shotgun and pointing it at the camera
. . . [with] text saying . . . ‘be ready tomorrow.’”
Within five minutes after reviewing the video,
the principal and the police chief, in full uniform
carrying a loaded firearm, removed NC from
class. NC, who was thirteen years old, was taken
to the school office where they waited for NC’s
father to arrive. Id. at 1-2.
Upon his arrival, the police chief told NC’s father
about the video and explained that he needed to
question NC. The police chief did not ask NC’s
father for permission to interview NC. Before the
interview began, the police chief did not tell NC
he was under arrest. He did not say NC would be
unable to go home, that he was free to leave, or
that he could contact a lawyer. Id. at 2.
The police chief and principal took NC into the
principal’s office where the police chief
interviewed NC. The police chief sat across from
NC, NC’s father was to his left, and the principal
sat at his desk in the back of the room. The
principal’s office doors stayed closed. Id.
During the interview, the police chief told NC
about the video and asked NC to explain it. NC
said the video was made one week ago, a friend
edited it, and someone shared it with a private
group of friends on social media. NC also stated
that the video and caption were in reference to a
school shooting, but that it was a joke. After the
interview, the principal suspended NC from
school for ten days, and NC went home with his
father. Id.
Overall, the interview was brief, lasting no longer
than 30 minutes, with the police chief as the
primary questioner. The decision stated NC was
scared, but he was not physically restrained or
handcuffed. NC’s father did not participate in the
interview, and he did not think he was able to
remove NC from school or the interview.
Further, NC’s father, “believed that the only
reason he was permitted to be present was
because he promised to be a silent observer,”
during the interview. Id.
NC was later charged “with making a false report
or threat of terrorism” and “an intentional threat
to commit an act of violence against students or
school employees on school ground or school
property.” Id. at 2; MCL 750.543m; MCL
750.235b(1).
Trial Court Ruling
At the trial court, NC moved to suppress his
statements to the police chief, arguing that the
interview was a custodial interrogation in which
NC was not given his Miranda warnings.
The trial court examined several factors under the
totality of the circumstances. Ultimately, the trial
court stated that an objective and reasonable
thirteen-year-old would have
felt that he could not leave the
principal’s office during
questioning by the police chief
and that the factors weighed in
favor of Miranda warnings
being required.
Therefore, finding that the interview was a
custodial interrogation of NC, the trial court
decided to suppress NC’s statement made during
the interview.
Legal Test
Individuals have a right against self-
incrimination under the Fifth Amendment.
Generally, to protect this right, police must give
a person Miranda warnings before a custodial
interrogation. The Court stated that to determine
whether a person is in custodial interrogation and
requires Miranda warnings, the totality of the
circumstances must be considered. Id. at 3.
Further, the objective inquiry considers “both
whether a reasonable person in the defendant's
situation would believe that he or she was free to
leave and whether the relevant environment
present[ed] the same inherently coercive
pressures as the type of station house questioning
at issue in Miranda.” People v Cortez, 299 Mich
App 679, 691-92 (2013). Therefore, a person is
found to be in custodial interrogation if there is a
serious danger of coercion and a person is not
free to leave. People v Barritt, 325 Mich App
556, 562 (2018); JDB v North Carolina, 564 US
261, 270 (2011). Ultimately, statements the
person makes are not admissible in a trial unless
the person “voluntarily, knowingly, and
intelligently waives the constitutional right
against self-incrimination.” Barritt, 325 Mich
App at 561-62.
Along with the juvenile’s age, the Court will
consider the following relevant factors to
determine if the person felt free to leave: (1) the
location of the questioning; (2) the duration of the
questioning; (3) statements made during the
interview; (4) the presence or absence of physical
restraints during the questioning; and (5) the
release of the interviewee at the end of the
questioning. Id. at 562-63. All
factors will be considered along
with the totality of the
circumstances.
Analysis
In the context of Miranda rights,
questioning a juvenile in school or a principal’s
office was an issue of first impression for
Michigan courts.
The Court noted decisions from the North
Carolina Court of Appeals, Indiana Supreme
Court, Kentucky Supreme Court, and Minnesota
Court of Appeals as being highly persuasive
regarding the consideration of the factor that
questioning took place in the principal’s office or
at school. Therefore, the Court found that police
questioning which occurs at a school or in a
principal’s office is a highly relevant factor in
considering whether the student is in custody
pursuant to Miranda. In re NC, unpub op at 5-6.
The Court found that certain factors weighed
against NC being in custody, such as the brevity
of the interview, NC father’s presence, and that
NC was not arrested or restrained. However, the
Court ultimately held that the lower court did not
error in determining that the NC was in custody,
“The Court stated that to determine
whether a person is in custodial
interrogation and requires Miranda
warnings, the totality of the
circumstances must be considered.”
requiring the police to give NC Miranda
warnings. Id.
The Court found that the following factors
weighed in favor of a finding that NC was in
custody: (1) NC was thirteen years old, (2) NC
was removed from class by the principal and an
armed police officer in full uniform, (3) no
explanation was given, (4) NC waited at the main
office with a police officer nearby, (5) the school
was in a lockdown, and (6) all students were not
free to leave or move around the school during
the lockdown. Additionally, the principal stated
that most thirteen-year-old students would not
think they could leave an interview being
conducted by a police officer in the principal’s
office and that, if the student left, this would be
considered insubordinate. Id. at 7.
Overall, the Court held that there was no clear
error in the trial court suppressing NC’s
statements to the police chief because, “under the
totality of the circumstances, Miranda warnings
were required.” Id. at 7. The Court therefore
affirmed the trial court’s decision.
Impact
This decision from the Michigan Court of
Appeals creates an additional factor for Michigan
courts in considering whether a juvenile student
is in “custodial interrogation,” and thus requires
a Miranda warning. In the future, Michigan
courts will consider if the student is a juvenile
and if the questioning took place in the
principal’s office or at school. An appeal has not
been filed to the Michigan Supreme Court as of
the date of this publication.
1
See Brian A v Stroudsburg Area Sch Dist, 141 F Supp 2d
502 (MD Pa, 2001) (public school principal is not required
to give Miranda warnings to a student facing disciplinary
action); Commonwealth v Snyder, 413 Mass 521 (1992)
(there is no authority requiring a school administrator not
acting on behalf of law enforcement officials to furnish
Miranda warnings); In re Corey L, 250 Cal App 3d 1020
(1988) (questioning of a student by a principal cannot be
equated with custodial interrogation by law enforcement
officers).
2
See State v CD, 947 NE2d 1018 (Ind App, 2011)
(incriminating admission made to an assistant principal is
Miranda Warnings in School Generally
Overall, “custodial interrogation means
questioning initiated by law enforcement officers
after a person has been taken into custody.”
Illinois v Perkins, 496 US 292, 296 (1990). An
individual’s right to receive Miranda warnings is
a constitutional protection and only applies to
governmental action. Further, “a person who is
not a police officer and is not acting in concert
with or at the request of the police is not required
to give Miranda warnings before eliciting a
statement.” People v Anderson, 209 Mich App
527, 531 (1995).
Courts have consistently held that custodial
interrogation does not occur, and Miranda
warnings are unnecessary, when a principal or
other school administrator questions a student
outside the presence of law enforcement.
1
Therefore, if the school principal or another
member of administration were to question a
student, that individual most likely would not be
required to give the student Miranda warnings
before questioning, unless the individual is acting
at the request or direction of law enforcement.
Further, courts have also held that custodial
interrogation does not occur if law enforcement
is merely present, including Student Resource
Officers ("SROs"), but remains silent during
questioning or law enforcement is mostly silent
and makes only minimal contributions during
questioning.
2
However, if the school principal or
another member of administration questions a
student for the purpose of obtaining evidence to
use in a criminal charge and the SRO is present,
then Miranda warnings are required. NC v
Commonwealth, 396 SW3d 852 (Ky, 2013).
admissible without Miranda warnings although it was
made in the presence of a police officer employed by the
school as a security officer); State v Schloegel, 2009 WI
App 85 (2009) (student was not in custody when
questioning was conducted primarily by the assistant
principal even though two police officers were present);
Matter of Tateana R, 64 AD3d 459 (NY App, 2009) (the
presence and minimal activity of a police officer during the
dean's questioning did not create a police dominated
custodial atmosphere such to require the dean to administer
Miranda warnings).
Likewise, courts have held that custodial
interrogation exists when a member of law
enforcement, including an SRO, actively
participates in the questioning of a student.
3
Therefore, when law enforcement or an SRO
predominantly questions a student, then Miranda
warnings are required. Further, Miranda
warnings are required when a school principal or
another member of administration questions a
student at the direction of law enforcement,
including an SRO, such as for the purpose of
gathering evidence to use in a criminal charge.
Please do not hesitate to contact our office if
you have any questions regarding students’
Fifth Amendment rights or the impact of this
ruling.
SIXTH CIRCUIT SET TO HEAR CHALLENGE
TO SCHOOL DISTRICT’S TRANSGENDER
ANTI-HARASSMENT POLICY
On February 1, 2024, the Sixth Circuit Court of
Appeals will hear oral arguments on an Ohio
school district’s anti-harassment and
discrimination policies regarding transgender
students. The Sixth Circuit governs Michigan,
Ohio, Kentucky, and Tennessee.
In Parents Defending Education v Olentangy
Local School District Board of Education, an
organization of students and parents is
challenging the Ohio school
district’s anti-harassment and
bullying policies which include,
among other things, disciplinary
action for intentionally
misgendering a transgender
student. Unpublished per
curiam opinion of the United
States District Court for the Southern District of
Ohio, issued July 28, 2023 (Docket No. 2:23-cv-
01595). Misgendering occurs when an
individual fails to address another individual,
particularly a transgender individual, by their
preferred pronouns. The district has a policy that
3
See MH v State, 851 So 2d 233 (Fla App, 2003)
(statements made in response to a question asked by an
SRO, who was a police officer, were properly suppressed
because a Miranda warning was not provided); In re RH,
791 A2d 331 (Pa, 2002) (school police officers, who are
employees of the school district but explicitly authorized to
prohibits discriminatory and obscene language
and defines discriminatory as the following:
“[V]erbal or written comments, jokes,
and slurs that are derogatory towards
an individual or group based on one or
more of the following characteristics:
race, color, national origin, sex
(including sexual orientation and
transgender identity), disability, age,
religion, ancestry, or
genetic information.” [Id.
at 3 (quoting Pl.’s Ex. B at
9).]
Parents Defending Education
(“PDE”) is seeking a
preliminary injunction to
prevent the Olentangy school district from
enforcing the anti-harassment and bullying
policies until the lawsuit is heard. PDE cites to
the First and Fourteenth Amendments for its
legal basis, arguing that the district’s policies
compel students to restrict their speech to align
exercise the same power as municipal police, are required
to administer Miranda warnings before questioning
students); In re Killitz, 59 Ore App 720 (1982) (student
should have been advised of his Miranda rights where he
was interrogated by an armed, uniformed police officer in
the principal's office with the principal present).
“PDE cites to the First and
Fourteenth Amendments for its
legal basis, arguing that the
district’s policies compel students to
restrict their speech to align with the
stance that gender is fluid.”
with the stance that gender is fluid. No student
has been punished under the policies yet. PDE
states that anonymous parents and students have
indicated a desire to engage in speech they
believe would be punished under the district’s
policy.
The United States District Court for the Southern
District of Ohio first ruled that PDE likely has
standing to bring the case. Id. at 8. Article III of
the U.S. Constitution only permits federal courts
to hear cases and controversies. Effectively, a
plaintiff bringing a case must show that they
have suffered an actual injury and that a
favorable decision from the court would redress
that injury in order to bring their case. Lujan v
Defs of Wildlife, 504 US 555 (1992). The
Southern District of Ohio judge ruled that PDE
likely has standing but noted that there is some
uncertainty. The Sixth Circuit Court of Appeals
will first have to address whether PDE has
standing before addressing the merits of the case.
On July 28, 2023, the court denied PDE’s
preliminary injunction. In its opinion, the court
found that a hostile environment could cause a
substantial disruption to student learning,
especially when slurs or discriminatory language
is used. Id. at 11-12. The court also did not
consider the district’s policies to be compelled
speech or viewpoint discrimination since, under
the policies, students are still able to voice their
beliefs on gender as long as it is not targeted at
students. Id. at 14-15. Additionally, students
would not be punished for accidentally
misgendering a student since it does not qualify
as harassment under the policy. Id. at 13. While
oral argument is scheduled for February 1, 2024,
a decision from the Sixth Circuit Court of
Appeals may take several months. Moreover, an
unsuccessful party may appeal an adverse
decision. Nonetheless, a decision could provide
guidance for other school districts that currently
have or choose to establish similar policies.
Please contact our office if you have questions
about this case or other legal developments
regarding gender identity in schools.
DENTAL EXAMS REQUIRED FOR INCOMING
KINDERGARTENERS FOR 2024-2025 YEAR
Public Act 316 of 2023 (“PA 316”) amends
Michigan’s Public Health Code to, beginning in
2024-2025, require dental oral assessments for
students registering for the first time in
kindergarten or first grade. MCL 333.9316. In its
bill analysis, the Michigan Senate provides that
acute and unplanned dental care is responsible
for approximately 34 million hours of missed
classroom time in the United States annually.
4
Guidance from the Michigan Department of
Health and Human Services (“MDHHS”)
explains that dental problems can cause students
to experience difficulties concentrating, prevent
4
See Senate Bill Analysis, available at
https://www.legislature.mi.gov/documents/2023-
2024/billanalysis/Senate/pdf/2023-SFA-0280-C.pdf.
them from eating and sleeping well, and affect
their behavior.
5
PA 316 took effect on December
14, 2023.
Previously, the passage of Public Act 261 of
2020 required the MDHHS to contract with a
government entity to establish and maintain a
dental oral assessment program for children. The
MDHHS established the Kindergarten Oral
Health Assessment Program (“KOHA”), which
is administered through local health
departments. The 2020 Act recommended that
first-time kindergarteners and first graders
5
See https://www.michigan.gov/mdhhs/adult-child-
serv/childrenfamilies/familyhealth/oralhealth/koha/school
s.
receive a dental oral assessment before starting
at a Michigan school. Now, PA 316 amends this
provision to require dental oral assessments for
children registering for the first time in
kindergarten or first grade. The assessment may
be performed by the child’s dentist, or at no cost
by the local health department.
PA 316 requires the dental
assessment to be conducted no
earlier than six months prior
to the date of the child’s
registration. The child’s parent
must obtain a written statement
on the KOHA assessment form
certifying that their child has
received the assessment within
this six-month period. At the
time of registration, and no later than the first
day of school, the child’s parent must present to
school officials either a written statement
certifying the completion of the dental exam, a
written statement that the parent will provide for
the child’s dental assessment by the local health
department, or a written statement indicating
that the dental assessment requirement violates
the parent’s religious beliefs. It should be noted
that even if a child’s parent fails to provide the
required statement, PA 316 requires that their
child not be excluded from attending school.
PA 316 further requires the principal or
administrator of each school to provide the
MDHHS with a summary of dental reports
before November 1 of each year.
The MDHHS recommends that
schools provide information
about dental screenings in parent
letters and social media posts and
include the KOHA assessment
form and dental screening
information in their school
registration packets. The
MDHHS also states that schools
may work with their local health department to
offer dental oral assessments at pre-enrollment
events.
6
Please do not hesitate to contact us at Collins
& Blaha, P.C. if you have any questions
regarding this legislation.
MICHIGAN TAKES ADDITIONAL STEPS TO
ADDRESS TEACHER SHORTAGE
Within the last few months, the Michigan
legislature has taken a number of actions to
address the teacher shortage. A summary of key
actions taken by the legislature are as follows:
Return to Employment After Retirement
(Public Act 147 of 2023)
Pursuant to Public Act 147 of 2023 (“PA 147”),
retired public school employees may return to
work while continuing to receive their retirement
6
See https://www.michigan.gov/mdhhs/-
/media/Project/Websites/mdhhs/Adult-and-Childrens-
Services/Children-and-Families/Healthy-Children-and-
Healthy-Families/Oral-Health/FAQs_Schools.pdf; See
benefits if certain conditions are met. MCL
38.1361.
Under PA 147, a retirant can return to work while
receiving their pension and subsidy for
retirement health care benefits if they wait at
least six months after retirement to return to
work, or they earn $15,100 or less in a calendar
year in their new post-retirement position.
Additionally, the Act requires that the retirant
was employed in a position other than the
superintendent at the time of retirement, and that
the retirant is now employed at a reporting unit
also https://www.michigan.gov/mdhhs/adult-child-
serv/childrenfamilies/familyhealth/oralhealth/koha/school
s.
“Guidance from the Michigan
Department of Health and Human
Services (“MDHHS”) explains that
dental problems can cause students
to experience difficulties
concentrating, prevent them from
eating and sleeping well, and affect
their behavior.”
after a bona fide termination of employment. A
bona fide termination requires that an individual:
1) does not work during the month of their
effective retirement date and 2) has no intention,
expectation, offer, or contingency to return to
work for the reporting unit at the time of
retirement. The Office of Retirement Services
provides an FAQ for retired public school
employees to further clarify when retirants may
return to work without having to forfeit their
retirement benefits.
7
PA 147 took effect on
October 10, 2023.
Position Flexibility with Certifications
The Michigan Department of Education
(“MDE”) released a memorandum regarding
staffing flexibilities for elementary and world
language teachers for public school districts and
academies.
8
The MDE relaxed teaching
requirements by allowing teachers with certain
certifications to teach different grade levels and
subjects. For example, teachers who are certified
in Elementary K-5 All Subjects (K-8 All
Subjects in Self-Contained Classroom) (ZG),
may also teach any subject within grades K-8,
regardless of whether the classroom is self-
contained. Further, the world language
endorsement (FA-FS) that was previously
confined to a narrower range than Pre-K-12, may
now be taught at any level of the Pre-K-12 range.
Funding and Other Programs
In 2022, Governor Whitmer and the Michigan
legislature appropriated $575 million to help
decrease the teacher shortage.
9
Of that amount,
$175 million was dedicated to Grow Your Own
7
See https://www.michigan.gov/orsschools/pa-147-of-
2023-
faqs?fbclid=IwAR1EWP729pyY_K7YP2iBdcHHOA5lq
wVDG4kZHvjPyGPLp-PQ2nRIK-0gsJQ.
8
See https://www.michigan.gov/mde/-
/media/Project/Websites/mde/Memos/2023/11/Elementar
y-and-World-Language-Staffing-
Flexibilities.pdf?rev=e1b9213f2fa14fc4ab3e29d4a8ada9
41.
9
See https://www.michigan.gov/mde/news-and-
information/press-releases/2022/12/13/efforts-to-address-
teacher-shortage-expand-with-new-state-funding.
Programs, which help school support staff
receive training to become teachers.
10
Other
initiatives that were approved under this budget
include tuition reimbursement for aspiring
teachers, student teaching stipends, and
additional funding to recruit and hire career and
technical education instructors.
Additionally, other programs like EXPLORE
were created for students in grades 6-12 who are
interested in the educational field by providing
them an opportunity to participate in teaching
related programs. These programs include
“hands-on experience and critical
conversations” that students would not
otherwise receive.
11
Furthermore, teacher apprenticeship programs
were created to help reduce the teacher
shortage.
12
Teacher apprenticeship programs
provide children an opportunity to work in the
classroom and be mentored by veteran teachers.
The MDE partnered with the Department of
Labor, several school districts in Saginaw
County, and Saginaw Valley State University to
create this registered apprenticeship program.
This program does not replace any of the
prerequisites to becoming a teacher.
Please do not hesitate to contact our office if
you have any questions regarding the teacher
shortage or retirement.
10
See https://www.michigan.gov/mde/news-and-
information/press-releases/2023/12/20/state-continues-to-
invest-in-grow-your-own-future-proud-michigan-
educator-programs.
11
See https://www.michigan.gov/mde/news-and-
information/press-releases/2023/02/13/future-proud-
michigan-educator-program-highlighted-in-newest-
proudmieducator-video.
12
See https://www.michigan.gov/mde/news-and-
information/press-releases/2023/07/27/michigan-among-
nation-leaders-in-addressing-teacher-shortage.
“The MDE relaxed teaching
requirements by allowing teachers
with certain certifications to teach
different grade levels and
subjects.”
PROPOSED INDEPENDENT CONTRACTOR
RULE FACES LEGAL HURDLES
Independent contractors are considered exempt
from the rules of the Fair Labor Standards Act
(“FLSA”), including minimum wage, overtime,
and reporting provisions. However, the FLSA
does not define the term “independent
contractor.” For many years, federal courts have
used the six-factor “Economic Realities” Test to
determine whether an employee is an
independent contractor.
On January 9, 2024, U.S. Department of Labor
(“DOL”) recently issued a final rule stating when
a worker should be considered an independent
contractor, which is likely to have
significant implications for both
contractors and the employers
that hire them. The rule is
effective March 11, 2024.
By way of background, on
January 7, 2021, the DOL
published a proposed rule
13
addressing whether workers are
employees or independent contractors under the
FLSA, which went into effect on March 8, 2021.
The DOL identified two “core factors”
determining whether a worker is an independent
contractor: the nature and degree of the worker's
control over the work, and the worker's
opportunity for profit or loss based on initiative,
investment, or both. The DOL explained that
these factors are the most probative of whether
workers are economically dependent on
someone else's business or are in business for
13
See
https://www.federalregister.gov/documents/2021/01/07/2
020-29274/independent-contractor-status-under-the-fair-
labor-standards-act.
14
See
https://www.federalregister.gov/documents/2021/01/28/2
021-01868/memorandum-for-the-heads-of-executive-
departments-and-agencies.
themselves. The DOL also identified three less
probative factors to be considered: the amount of
skill required for the work, the degree of
permanence of the working relationship between
the individual and the potential employer, and
whether the work is part of an integrated unit of
production. The DOL further advised that in
determining whether a worker is an independent
contractor, the worker’s actual practice is more
probative than what may be contractually or
theoretically possible.
On January 20, 2021, the Office of Management
and Budget (“OMB”) issued a
memorandum directing federal
agencies to postpone the
effective dates of rules that had
been published but had not yet
taken effect.
14
The DOL
thereafter issued a notice of
proposed rulemaking seeking to
delay the independent contractor
rule from going into effect,
sought comments, and then issued a final rule
delaying the effective date of the rule.
15
The
DOL officially withdrew the rule on May 6,
2021.
16
However, on March 14, 2022, the Eastern
District of Texas vacated the decision to delay
and withdraw the original rule and held that the
new independent contractor rule became
effective on March 8, 2021. Coalition for
Workforce Innovation v Walsh, unpublished
opinion of the Eastern District of Texas, issued
15
See
https://www.federalregister.gov/documents/2021/03/04/2
021-04608/independent-contractor-status-under-the-fair-
labor-standards-act-flsa-delay-of-effective-date.
16
See
https://www.federalregister.gov/documents/2021/05/06/2
021-09518/independent-contractor-status-under-the-fair-
labor-standards-act-flsa-withdrawal.
“The DOL identified two ‘core
factors’ determining whether a
worker is an independent
contractor: the nature and degree
of the worker's control over the
work, and the worker's opportunity
for profit or loss based on
initiative, investment, or both.”
March 14, 2022 (Case No. 1:21-CV-13). The
DOL’s appeal of that decision is currently
pending before the Fifth Circuit. Id., appeal
docketed, No. 22-40316 (CA 5, May 16, 2022).
Courts in two cases have stated that the 2021
DOL rule from is not controlling. The court in
Harris v Diamond Dolls of Nevada, LLC,
unpublished opinion of the United States District
of Nevada, issued July 26, 2022 (Case No.
319CV00598RCJCBC), p *2 stated that the
“DOL's regulations are generally not binding but
merely interpretative” and cannot be considered
a change in law. Id. The court in Wallen v
TendoNova Corp, unpublished opinion of the
District Court of New Hampshire, issued
November 22, 2022 (Case No. 20-cv-790-SE)
agreed with the Harris ruling, finding the 2021
rule not to be controlling and may not be valid,
pending appeal.
On October 11, 2022, the DOL issued a proposed
rule, which rescinded the 2021 rule and replaced
it with a rule that Economic Realities Test.”
17
Specifically, the DOL proposed to modify the
text published on January 7, 2021, addressing
whether workers are employees or independent
contractors under the FLSA. The DOL proposed
to return to a totality-of-the-circumstances
analysis of the economic realities test in which
the factors do not have a predetermined weight
and are considered in view of the economic
reality of the whole activity.
The DOL further proposed to return the
consideration of investment to a standalone
factor, provide additional analysis of the control
factor, including detailed discussions of how
scheduling, supervision, price-setting, and the
ability to work for others should be considered,
and return to the longstanding interpretation of
the integral factor, which considers whether the
work is integral to the employer's business.
17
See
https://www.federalregister.gov/documents/2022/10/26/2
022-23314/employee-or-independent-contractor-
classification-under-the-fair-labor-standards-act-
extension-of.
The proposed rule sets forth the following six
factors to serve as a guide to determine, under
the totality of the circumstances, whether a
worker is a non-exempt employee dependent on
the employer, or is in business for themselves as
an independent contractor:
1. Opportunity for profit or loss depending
on managerial skill.
2. Investments by the worker and the
employer.
3. Degree of permanence of the work
relationship.
4. Nature and degree of control.
5. Extent to which the work performed is
an integral part of the employer’s
business.
6. Skill and initiative.
This test would do away with the core two-factor
approach and replace it with the above six
factors that are not given predetermined weight
but will be applied based on the facts of each
case. Additional factors may also be considered
in this analysis.
The Society for Human Resource Management
(“SHRM”) reports that industries such as
construction and transportation could be
significantly impacted by the new rule.
Moreover, the rule may mean increased
misclassification litigation because of the vague
nature of the finalized rule.
18
For schools,
continued use of staffing firms such as Edustaff
may prove as an alternative to hiring third party
or outside workers and avoiding potential
challenges.
Initially, the DOL sought to issue the final rule in
May 2023. However, on June 9, 2023, the U.S.
Court of Appeals for the Fifth Circuit granted a
120-day delay to further proceedings related to a
DOL appeal in response to the federal district
court ruling in March 2022 to allow the DOL
18
See https://www.shrm.org/topics-tools/employment-
law-compliance/Independent-Contractor-Rule-Impacts.
time to complete its rulemaking.
19
The DOL
stated it continued to review the over 54,000
comments received on the rule. Although the
DOL indicated an August 2023 final rule release
in the Office of Information and Regulatory
Affairs’ Spring Agenda, the 120-day delay
allowed the DOL until October 2023 to publish
the rule, as it was still under review by OMB.
20
On January 9, the DOL finalized its rule,
officially rescinding the 2021 rule.
21
This new
rule has an effective date of March 11, 2024.
However, the rule is not without challenges. Four
freelance workers filed the lawsuit in Georgia
federal court late Tuesday, alleging that the rule
unveiled last week is so vague that it violates the
U.S. Constitution. The plaintiffs stated in their
complaint that they would seek an order
temporarily blocking the rule while the lawsuit
proceeds. On the Congressional level, Senator
Bill Cassidy (R-LA) announced he will
introduce a Congressional Review Act resolution
to repeal the rule.
For now, this rule is set to take effect in March
and most federal circuit courts have applied the
“Economic Realities Test.” Thus, employers
should look to the “Economic Realities” Test
when determining whether an employee is an
“independent contractor” for FLSA purposes.
Please do not hesitate to contact our office if
you have any questions regarding the recently
finalized independent contractor rule.
19
See https://tax.thomsonreuters.com/news/dol-indicates-
final-independent-contractor-rule-coming-no-later-than-
october/.
20
See https://www.thinkadvisor.com/2023/10/04/final-
dol-independent-contractor-rule-lands-at-omb/.
21
See
https://www.dol.gov/agencies/whd/flsa/misclassification/
rulemaking.
Since 1981, when Collins & Blaha, P.C. was founded, our attorneys have represented educational
institutions in the ever-changing area of educational law. We currently represent some of the largest
school districts in the state, and some of the smallest. Whatever the size, the issue, or the challenge, our
clients are confident that Collins & Blaha, P.C. will represent their interests competently and with the
hands-on approach that a specialized firm can provide.
COLLINS & BLAHA, P.C.
ATTORNEYS AT LAW