February 29, 2024

Emerging Employee and Student Handbook Updates for the 2024-2025 School Year

6 min

Each year, new issues, technologies, and events impact the way that independent schools set and carry out their expectations, values, and procedures in their communities. As independent schools embark on the 2024-2025 school year, it is imperative that they ensure that their employee and student handbooks are not only comprehensive but also address new and evolving issues affecting independent schools. Below, we have summarized several new policies that independent schools should consider implementing for the upcoming school year.

Name, Image, and Likeness

Following in the footsteps of collegiate student-athletes, high school athletes have also begun to seize opportunities to monetize their name, image, and likeness (NIL). Where a high school student is able to receive compensation for their NIL is governed by state law and regulations. Currently, 33 states and the District of Columbia permit the practice.

Independent schools in states that permit high school students to be compensated for their name, image, and likeness should consider the impact that student-athletes' endorsement and promotional activity might have on the school and implement a policy regulating student NIL activities to prevent legal and/or reputational harm to the school.

An NIL policy should outline permissible activities and endorsements, delineating what types of commercial opportunities students may engage in without jeopardizing their eligibility for athletic participation or violating any state or federal laws. In the same vein, schools should consider limiting students' participation in endorsements of products or services that do not align with the school's policies or values, or could reflect poorly on the student or the school.

Additionally, the policy should address students' use of the school's name and logos in their social media posts or other promotional activities. Many schools already prohibit the use of their names and logos for non-school-sponsored activities without obtaining specific consent to do so. Independent schools should ensure that their NIL policies are consistent with any other policies regarding use of their school name and logo.

Employees' Political Activity

As the 2024 presidential election cycle is in full swing, schools should expect that they will need to address issues involving the expression of a wide range of political views and beliefs and the inevitable interpersonal conflicts that will follow. Schools may consider including language in their employee handbooks that sets clear expectations for employees to maintain appropriate professional boundaries in their interactions with colleagues and to remind employees not to let their personal views create disruption at the school. In a similar vein, faculty should be reminded of their role as educators and that they should endeavor not to impose their own political and social views on students.

Finally, independent schools, as 501(c)(3) nonprofit entities, are prohibited from engaging in partisan political activity, either directly or indirectly. Accordingly, employees who purport to speak on behalf of the school may jeopardize the school's 501(c)(3) status if they advocate for or against a particular candidate for elected office or use school resources to do so. Accordingly, schools that have a particularly politically active staff may consider implementing a policy on employees' political activity ahead of the upcoming election to provide employees with clear guidelines regarding their participation in partisan political activities.

Addressing Artificial Intelligence Use

Generative artificial intelligence (AI) technology in the school setting presents a range of opportunities, risks, and problems for independent school administrators. As independent schools continue to learn how to harness generative AI tools to enhance the learning experience, they must also address the risks and potential issues that may arise when students, faculty, and staff integrate the use of generative AI tools into their day-to-day work and studies.

In addition to training students, faculty, and staff on the benefits and risks of using generative AI, it is wise for schools to develop policies regarding the use of generative AI, both both students and staff, that set out the school's guidelines for appropriate use.

A student AI policy may address appropriate and inappropriate uses of AI in completing schoolwork. Similarly, a faculty AI policy may address appropriate and inappropriate uses of AI in designing curricula and completing other assignments, including the copyright or other intellectual property considerations thereof. As highlighted in several lawsuits filed against OpenAI, the creator of ChatGPT, millions of news articles, books, and other published works were purportedly used without authorization to train generative AI tools. Such works are then used by generative AI tools to formulate responses. Accordingly, any responses used by staff or students may contain works that are subject to copyright protections. Independent schools' AI policies should address copyright issues, plagiarism, and the appropriate method of citing the use of AI chatbots when such use is permitted for school-related work.

Additionally, independent schools' AI policies should remind students and staff of the privacy concerns related to use of ChatGPT and other chatbots. In particular, such policies should warn students, faculty, and staff that generative AI tools cannot distinguish between private and non-private information with absolute accuracy and, therefore, may collect, store, and, potentially, share personal information provided by users in their prompts to other users, exposing the school to potential liability. For example, schools' employee AI policies should prohibit employees from using students' names or other personal information when using generative AI tools to create personalized learning plans for a particular student.

NLRA Developments

Given the recent increased pro-employee activity by the National Labor Relations Board (NLRB), independent schools should review their existing employee handbook policies to address employees' rights under the National Labor Relations Act (NLRA), which covers most employers, including independent schools, regardless of union presence. Specifically, in August 2023, the NLRB adopted a new standard for evaluating whether a workplace's rules violate the NLRA.

Under the NLRB's previous standard, employee policies were subject to a balancing test that weighed their tendency to restrict employee rights against the business needs justifying them. Additionally, some types of employee policies were specifically classified as "lawful, sometimes lawful, or never lawful." Now, rather than seeking to balance the interests of the employer and employee, the NLRB's new standard considers an employee policy presumptively unlawful if it could be reasonably interpreted to chill employees from exercising their rights under Section 7 of the NLRA.

Schools should review workplace conduct policies, policies limiting the use of personal electronic devices or school-issued devices, employee social media policies, confidentiality policies, non-disparagement policies, or other policies that restrict employee conduct or behavior, to ensure that they cannot be interpreted as interfering with employees' rights under Section 7 of the NLRA. Likewise, schools should ensure that their employee handbooks include disclaimer language specifically stating that the policies contained therein are not intended to interfere with employees' Section 7 rights. While it is still unclear whether these types of disclaimers will help to validate a policy that may otherwise be deemed unlawful under the NLRB's new standard, it is a proactive step that schools can take until the NLRB considers the issue specifically.

The Venable Independent School Law team is available to assist schools in updating their employee and student handbooks for the upcoming school year. Schools with questions about the issues addressed in this client alert or that require assistance reviewing their employee and student handbooks should contact Caryn G. Pass, Grace H. Lee, Janice P. Gregerson, or Ashley E. Sykes.