Covid Case of the Week: Haney-Fillipone v. Agora Cyber Charter School - Teacher Wins Right to Covid-Based Leave - Private Charter School a "Public Agency" Pursuant to FMLA, Required to Follow FFCRA

White Female Teacher, Black female teacher, Black Male Teacher in Front of Chalkboard

Entitled to Protection Under FMLA, and Thus FFCRA and EPSLA

A Private Charter School is Deemed a Public Agency and Thus a Covered Employer Under FMLA, FFCRA and EPSLA

This week, we discuss the May 10, 2021 decision of Haney-Fillipone v. Agora Cyber Charter School out of the Eastern District of Pennsylvania, authored by Judge Chad F. Kenney.

The issue in this case was whether the defendant Agora, a private non-profit cyber charter school was a "covered employer" under the FFCRA (specifically the Emergency Family and Medical Leave Expansion Act ("EFMLEA") and the Emergency Paid Sick Leave Act ("EPSLA")) and was therefore liable to the plaintiff, a third-grade teacher, for alleged violations of the FCCRA, the Family and Medical Leave Act ("FMLA"), and the Fair Labor Standards Act ("FLSA").

More specifically, the plaintiff, who was during the pandemic required to remotely co-teach live classes throughout the day, monitor and track individual student goals, meet with individual students one-on-one, and attend meetings and calls with parents. She had 4 children, ages 4, 9, 12, and 17 who were beginning in the Spring of 2020 home full-time due to school closings. The pandemic did not affect Agora’s schedule due to its cyber nature, and in the Fall of 2020 the number of students plaintiff was required to teach nearly doubled.

Plaintiff inquired several times about taking leave under the FFCRA. Agora did not allow her to do so, taking the position that it was a "private entity" employing over 500 people, and therefore not subject to the paid and unpaid leave provisions of the FFCRA. Plaintiff used vacations days to supervise her children during the day as much as possible and worked on weekends and evenings to complete her professional obligations.

On October 23, 2020, she filed suit, seeking a judgment declaring that Agora is a "covered employer" under the FFCRA.

The Court first observed that the part of the FFCRA is EFMLEA, which temporarily expanded the FMLA to provide that qualifying employers were to provide up to twelve weeks of leave for employees who have been on the job for at least thirty days and who are unable to work or telework because they have to care for a child due to the coronavirus. After ten days of unpaid leave in such circumstances, employees are entitled to paid emergency family leave at two-thirds of their regular wages, up to a statutory cap, for the remaining ten weeks of the FMLA period.

Fork In Road One Goes to Private School One to Private Schhol

All Roads Lead to Need to Comply With FMLA, FFCRA, EPSLA

Teachers of Public and Private Schools Are Entitled to Leave Under FMLA, and Paid Leave Pursuant to FFCRA and EPSLA

In finding that Agora was a covered employer pursuant to FMLA (and thus was required to adhere to the FFCRA), the Court held:

As a general matter, the FMLA applies to educational institutions so long as the other requirements are met. See 29 C.F.R. § 825.600(b) ("Educational institutions are covered by FMLA"); 29 C.F.R. § 825.104(a) ("Public as well as private elementary and secondary schools are [ ] covered employers."); see also Kobielnik v. W. Cape May Bd. of Educ., No. CV 13-03805 (RMB/JS), 2015 WL 12743598, at *2 (D.N.J. Mar. 11, 2015) (citing 29 C.F.R. § 825.600(b) in applying FMLA rules in suit against school board); Kordistos v. Mt. Lebanon Sch. Dist., No. CV 16-615, 2017 WL 3593882 (W.D. Pa. Aug. 21, 2017); Fiorentini v. William Penn Sch. Dist., 150 F. Supp. 3d 559, 570 (E.D. Pa.), aff'd, 665 F. App'x 229 (3d Cir. 2016) (noting there was "no dispute" that defendant school district was subject to the FMLA); Hubbard v. Pleasant Valley Sch. Dist., No. CIV.A. 3:CV-03-0797, 2006 WL 42093 (M.D. Pa. Jan. 6, 2006). Further, the FMLA has specific provisions for how the statute's leave requirements apply to schools due to schools' unique work calendars. See 29 U.S.C. 2618(a)(1)(A). It is clear from the face of section 2618 that it does not expand the definition of a "covered employer" under the FMLA. Rather, it presupposes that schools are covered. Courts have also found the FMLA applies to charter schools, not just traditional public schools, districts, and school boards. Callaway v. Acad. of Flint Charter Sch., 904 F. Supp. 2d 657, 668 (E.D. Mich. 2012) (denying defendant's summary judgment motion on teacher's FMLA claims for interference and retaliation against her charter school employer); see also Provence v. Avon Grove Charter Sch., No. CIV. A. 07-659, 2008 WL 2928314, at *12 (E.D. Pa. July 28, 2008) (finding that Pennsylvania charter school did not prejudice employee's FMLA right); Kelly v. Richard Wright Pub. Charter Sch., No. CV 16-1853 (TJK), 2019 WL 451348, at *4-7 (D.D.C. Feb. 4, 2019) (same).
Further, courts have held that school districts and school boards are "public agencies" under the FMLA. Hewett v. Willingboro Bd. of Educ., 421 F. Supp. 2d 814, 818 (D.N.J. 2006) (holding that the Defendant Board of Education was a "public agency" under the FMLA); Herman v. Princeton City Sch., No. C-1-96-358, 1997 WL 861836, at *1 (S.D. Ohio Sept. 23, 1997) (finding that "Princeton City Schools is a public agency . . . [and] an employer within the meaning of the Family and Medical Leave Act"); Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 201-02 (D. Conn. 2012) ("it is apparent that the Board [of Education], a public agency, constitutes an employer under [29 U.S.C. § 2611] 4(A)(iii)"). Since these entities are all covered under the FMLA, the key here is whether Agora—as a public cyber charter—differs from public schools, school boards, and school districts in such a way that it would not fall into the same definition of "public agency."
The Court notes that how state law treats an entity is relevant to whether it is a "public agency" within the meaning of the FMLA. By referencing U.S. Code Title 20's definition of a "local educational agency," the FMLA explicitly incorporates how state laws define an educational entity. See 29 U.S.C. 2618(a)(1)(A) (cross-referencing 20 U.S.C. § 7801's definition of a "local educational agency"). 20 U.S.C. § 7801 defines local educational agency as "a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State." 20 U.S.C. § 7801(30)(A) (emphasis added); see Hewett v. Willingboro Bd. of Educ., 421 F. Supp. 2d 814, 818 (D.N.J. 2006) (noting that "[i]n New Jersey, the definition of `political subdivision' includes a `school district'" in holding that the defendant board of education was a "public agency" under the FMLA) (citing N.J.S.A. 52:27-BB-2). Since Agora exists within a framework of Pennsylvania law, how that law treats Agora is relevant to this Court's determination of whether Agora is covered under the EFMLEA.
Pennsylvania law treats a public charter school like Agora as a public entity similar to a school district in several significant respects, and supports a finding that Agora is "public agency" for FMLA and EFMLEA purposes. Charter schools are "independent public schools established and operated under a charter." 24 P.S. § 17-1703-A. Pennsylvania law defines both school districts and public charters as "bodies corporate." See 24 P.S. § 2-211 ("The several school districts in this Commonwealth shall be, and hereby are vested as, bodies corporate, with all necessary powers to enable them to carry out the provisions of this act"); 24 P.S. § 17-1714-A(a) ("A charter school established under this act is a body corporate and shall have all powers necessary or desirable for carrying out its charter"). Pennsylvania charter schools can "[s]ue and be sued, but only to the same extent and upon the same condition that political subdivisions and local agencies can be sued." 24 P.S. § 17-1714-A. Trustees of charter schools are "public officials." 24 P.S. § 17-1715-A. Further, charter schools are publicly funded because they receive their funding from the school districts where students attending the charter school reside. 24 P.S. § 17-1725-A(a). Cyber charter schools are regulated and subject to annual assessments by the Pennsylvania Department of Education. 24 P.S. § 17-1742-A.
A Pennsylvania COVID-specific state law related to schools supports a finding that Agora is not meaningfully distinguishable from traditional public schools and school districts for some regulatory purposes. Act 13 of 2020 amended the Pennsylvania School Code to add a new section called "Pandemic of 2020," which defines charter schools, public schools, and school districts all as "school entit[ies]." 24 P.S. § 15-1501.8 ("School entity. Any school district, intermediate unit, area career and technical school, charter school, cyber charter school or regional charter school a child attends in order to fulfill the compulsory attendance requirements of this act."). Private schools are not included in this definition.
Based on the above, the Court concludes that Agora is a "public agency" under the FMLA. While Agora has some hallmarks of a private entity—it was founded by private individuals and is run by a board of privately appointed members—the weight of the legal authority supports a finding that it a "public agency." School districts, education boards, and charters are all employers under the FMLA, and school boards and school districts have been specifically held to be "public agencies." E.g., 150 F. Supp. 3d at 570; 421 F. Supp. 2d at 818; Kelly, 2012 WL 425257, at *3. Pennsylvania law provides that charters, like its school districts, are bodies corporate and gives charters the power to sue and be sued to the same extent as political subdivisions and local agencies can be sued. 24 P.S. § 2-211; 24 P.S. § 17-1714-A(a)(2). Since public charters operate outside the governance of school districts and public-school boards, charters function as schools and as their own administrative bodies. That Pennsylvania law gives charters possess these dual roles drives the Court's finding that charters are "public agencies" under the FMLA.