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Why Phenix City Schools are Standouts

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Gov. Kay Ivey joins Phenix City School Superintendent Randy Wilkes (to her left) and faculty and students for a tour of the Dyer Family STEM Center.

When the Alabama Department of Education handed out its third annual batch of report cards to Alabama schools on Friday, October 18, one of those most proud to carry it back to the people at home was the Phenix City School System.

Since the time the state of Alabama began requiring the State Report Card system of accountability, Phenix City schools have gone from a D to an A, and it’s a measure that is echoed in other achievements, including graduation rates well above the state average and a STEM (science, technology, engineering and math) curriculum that is system-wide and one of the best in the state. The graduation rate — as measured by federal standards — has gone from 51 percent for 2009-2010 to 97 percent for 2017-2018, which compares to a national average of 87 percent.

Wealth of the community is certainly not the reason for this level of achievement. Phenix City has a per capita income 20 percent below the state average, with almost 19 percent of the population below the national poverty level.

The apparent reason so many students stay in school is the richness of what the schools offer. Beginning in kindergarten, Phenix City students are completely immersed in STEM education. All elementary schools have a SMARTLab, with 6th and 7th graders receiving instruction in virtual science, coding, digital media and engineering laboratories. Students participate in 12-week courses of coding/robotics, engineering and digital media. High school students have 11 academies to choose from, including health occupations, advanced coding and television production. Every student, grades 6-12, has access to a take-home electronic device. Central High offers 24 advanced placement and dual enrollment courses.

Randy Wilkes has been superintendent since 2014 and was named 2018 superintendent of the year by the Alabama Department of Education. We asked him to name three prime reasons why Phenix City’s schools have excelled.

“Everything started with professional learning — over $1 million annually invested by teachers in 75,000 hours of learning activities created for our students to address their needs,” says Wilkes. “Our teachers don’t get off June and July.”

Another important contribution to improvement, says Wilkes, came from recruitment of teachers. It begins with getting the story out in the media. “Telling our story has created a desire to work for us.” And it culminates each year with a recruitment tour of the city and its schools, aimed at the best of recent college graduates.

“In April on a Saturday every administrator and supervisor meets with recruits right out of college and shows them our schools and wines and dines them, and the magic school bus takes them on a tour of apartments and shopping areas and hospitals, and they have a nice big meal, and after lunch we have speed interviews — one of the recruitment tactics we’ve learned in the last few years.”

Big too was the boost that came from the local community, culminating in $1.1 million in private donations raised in less than two years by the Friends of Phenix City Schools. One result of that initiative was the Dyer Family STEM Center at Phenix City Intermediate School, which benefited from a $150,000 donation from Gil’s Auto Sales.

Private fundraising is necessary, says Wilkes, because local taxpayers are already giving all they can. “We already have a high millage rate, 28.5 mills. That’s pretty significant when you consider the median household income is not that great. You would be putting more tax on people who can barely afford to get by.

“In terms of funding per pupil, we rank 120th among the 138 school systems in the state. We spend a little more than $8,000 per pupil, compared to $13,000 for Mountain Brook and $10,000 for Opelika.”

Alabama’s New Equal Pay Law — A Compliance Resource

Brooke Nixon, of Constangy, Brooks, Smith & Prophete, LLP

Alabama has now joined a growing number of states that have recently enacted pay equity laws. In all, 49 states have an equal pay law of some kind, with Mississippi being the only state without one. Gov. Kay Ivey signed the Clarke-Figures Equal Pay Act (CFEPA) on June 11, 2019. The CFEPA generally prohibits pay discrimination based on sex or race and also prohibits retaliation against an applicant for refusing to provide salary history information.

Pay Discrimination Based on Sex or Race is Prohibited

The CFEPA took effect September 1 and applies to both public and private employers. There is no exception for small employers. The law states that an employer:

may not pay any of its employees at wage rates less than the rates paid to employees of another sex or race for equal work within the same establishment on jobs the performance of which requires equal skill, effort, education, experience, and responsibility, and performance under similar working conditions…

However, similar to the federal Equal Pay Act — which prohibits pay discrimination based on sex only — wage disparities are permissible under the Alabama law if the disparity is due to (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production or (4) a differential based on any factor other than sex or race.

Individuals who believe they are being paid less than someone of a different gender or race performing the same work may bring a lawsuit in state court under the CFEPA or in federal court under the Equal Pay Act (EPA). If a plaintiff prevails under this provision of the CFEPA, as well as under federal law, the plaintiff must repay the employer one of the two “recoveries,” whichever is less. In other words, the law prohibits plaintiffs from receiving two sets of damages for the same alleged harm.

Inquiries about Salary History 

The second major prohibition in the CFEPA relates to salary history, stating:

An employer shall not refuse to interview, hire, promote, or employ an applicant for employment, or retaliate against an applicant for employment because the applicant does not provide wage history. . .

“Wage history” is defined as wages paid to the applicant by a current or former employer. This provision is meant to decrease the chance that a new employer will continue the pay gap created by former employers between employees of different races or different genders. Often, employers determine a new applicant’s pay rate based on their pay rate at their former job. If women and minorities are being paid less than their peers at one job, then using their former pay rate to determine their new pay rate could continue the pay gap cycle.

For instance, if Employer XYZ pays its male workers in Department A $12.00 per hour, then it should pay its new female worker, Mary, in Department A $12.00 per hour (assuming there is no other legitimate reason for the disparity) even if Mary previously only made $9.00 per hour at her former job. Employer XYZ may be tempted to offer Mary $10.00 per hour instead of $12.00 based on her prior salary history.

The CFEPA doesn’t prohibit employers from asking about wage history on an application or during an interview. However, if an applicant refuses to provide the information and fails to get the position, the applicant could bring a claim under the CFEPA arguing that they were not hired because of their refusal to provide wage history information.

The federal EPA does not address questions about salary history or use of salary history in determining compensation. Recently, the U.S. Court of Appeals for the Ninth Circuit held that the EPA prohibits employers from basing compensation decisions solely on salary history, but the U.S. Supreme Court vacated that decision for other reasons.

Other Provisions of the CFEPA

Pleading
An applicant or employee who brings an action under the CFEPA against an employer “must plead with particularity in demonstrating . . . [that he or she] was paid less than someone for equal work despite possessing equal skill, effort, education, experience, and responsibility,” and that the differential was not covered by one of the exceptions (for example, a seniority system).

Damages
An applicant or employee who prevails on a claim under the Alabama CFEPA can recover lost wages plus interest.

Recordkeeping
The CFEPA also requires Alabama employers to maintain records in accordance with regulations issued by the U.S. Department of Labor in connection with the federal Fair Labor Standards Act.

Statute of limitations
The statute of limitations to bring an action under the retaliation provision is two years “after the act of discrimination giving rise to a cause of action.” The statute of limitations for wage claims is also two years pursuant to Alabama Code 6-2-38(m).

There is no express statute of limitations for pay discrimination claims, as opposed to retaliation claims. Under the federal Lilly Ledbetter Fair Pay Act, which applies to pay discrimination claims brought under the Equal Pay Act and Title VII, each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

Recommendations for Employers 

Employers with operations in Alabama should review their payroll records, recordkeeping and pay practices, and new applicant paperwork to ensure compliance with the CFEPA:

  • Payroll Records: Review payroll records for current employees to ensure that employees in the same department performing the same work are receiving the same pay rate. If there is a disparity of pay rates, document a legitimate reason for the different rates such as seniority, merit, quantity or quality of production, or other differential not based on sex or race.
  • Recordkeeping and Pay Practices: Review your recordkeeping policies to ensure that you are in compliance with the recordkeeping provisions of the Fair Labor Standards Act. The CFEPA incorporates those provisions into the law and requires employers to maintain records to prove they are not in violation of CFEPA’s provisions prohibiting pay discrimination based on sex or race.
  • New Applicant Paperwork: Although the CFEPA does not prohibit employers from continuing to ask for salary history, employers are encouraged go the extra step and remove those questions from application forms to avoid retaliation claims.

Brooke Nixon is a partner in the Birmingham office of Constangy, Brooks, Smith & Prophete, LLP. She can be reached at bnixon@constangy.com.

UA, Auburn Team Up for Traffic Safety

Alabama’s top sports rivals are working together with the state to make Alabama’s highways safer.

Governor Kay Ivey awarded Auburn University, the University of Alabama and the Alabama Department of Public Health a $3.3 million grant to compile data, develop media campaigns and conduct a safety campaign toward properly securing children in child safety seats.

The University of Alabama’s Center for Advanced Public Safety was awarded $1.9 million to develop programs and compile data on crashes, seatbelt use and other statistical information that will help the Alabama Law Enforcement Agency and other agencies pinpoint where crashes often occur, leading to more patrols and checkpoints in those areas.

Auburn University’s Media Production Group was awarded a total of $1.1 million for media campaigns to warn motorists of the dangers of driving while texting and/or impaired and not wearing seatbelts.

The Alabama Department of Public Health will use a $60,000 grant to maintain a database involving the types of injuries suffered by people involved in automobile crashes and their health statuses. The federally required information is added to a nationwide database. Additionally, a $200,000 grant will provide a three-day training course for child safety seat certification and will enable the department to conduct programs throughout the state to teach motorists the proper techniques for installing child safety seats and fastening children in the seats.

The Alabama Department of Economic and Community Affairs is administering the grants from funds made available through the National Highway Traffic Safety Administration and the state Traffic Safety Trust Fund.

5 Things to Know about Alabama’s New Unfair Pay Law

From “Labor & Employment Insights,” by Bradley Arant Boult Cummings LLP

The Alabama Legislature in May passed the Clarke-Figures Equal Pay Act. Gov. Kay Ivey signed it into law and it goes into effect at the end of August.

While Alabama employers have been subject to federal laws regarding wage equality for years, Alabama workers may now also sue for wage discrepancies under Alabama law and in Alabama courts. Here are five things that you need to know about the Clarke-Figures Act.

1. Equal Pay for Equal Work. The act prohibits employers from paying any worker at a wage rate less than that paid to employees of another race or sex for equal work where the jobs require equal skill, effort, education, experience, and responsibility under similar working conditions. There is an exception for payments made pursuant to a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or a differential based upon any factor other than race or sex. While this standard sounds a lot like the standard in the federal Equal Pay Act, it may be very different than the legitimate, nondiscriminatory reason standard under Title VII.

2. Applicants Do Not Have to Provide Wage History. Employers may not refuse to interview, hire, promote, or employ an applicant and may not otherwise retaliate against an applicant for refusing to provide wage history information during the application or interview process. The law does not preclude an employer from asking about wage history, but employers cannot hold it against an applicant who refuses to provide it.

3. Potential Damages. A successful plaintiff can recover an amount equal to the wages that were lost because of the violation, plus interest. This is different than the recovery available under Title VII (i.e., back wages, compensatory damages, punitive damages and attorneys’ fees) or the Equal Pay Act (i.e., lost wages, liquidated damages equal to the lost wages, and attorneys’ fees). If an employee pursues claims under both the new Alabama law and federal law and receives a recovery for both, the employee must return to the employer the lesser of the two amounts recovered.

4. Two Years to File a Lawsuit. Employees have two years after the alleged discrimination to file a lawsuit. An employee who chooses to file suit must allege with particularity that:

a. the employee was paid less than someone else for equal work despite having equal skill, effort, education, experience, and responsibility; and

b. the wage schedule at issue was not correlated to any of the above-mentioned exceptions.

While it is possible that an employee may choose to only file suit under the new Alabama law, employers should expect claims to also be filed under the applicable federal laws, such as Title VII and the Equal Pay Act (which provide for attorneys’ fee awards and more potential damages).

5. Recordkeeping Requirement. State law now requires Alabama employers to comply with the recordkeeping requirements established by the Department of Labor pursuant to the Fair Labor Standards Act.

It is unclear how much use this new law will get. Only time will tell.

Alabama Credit Union Act Fine Tuned

During the most recent Legislative session, Alabama Governor Kay Ivey signed into law an update to the state’s credit union act.

The first of five new provisions expands the supervisory committees of Alabama credit unions, which had previously been limited to three members. Now the law calls for “no less than three” members.

Another provision allows a credit union to pay for reasonable and proper travel expenses for a board member, plus one guest, if that board member was on official credit union business – and not be considered compensation.

The other three changes were more procedural. First, the Alabama Credit Union Administration asked the state legislature to amend the law to allow the state credit union regulator to appoint the National Credit Union Administration as conservator of a credit union. The second change increased the number of days for meeting notice in the case of a merger, while the third clarified language to expressly allow credit union volunteers to serve on the Alabama Credit Union Administration’s board of directors. That board currently is comprised of credit union officers, CEOs and other upper management. All are appointed by the governor and confirmed by the state senate.

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