Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) into law. Pub. L. No. 111-2. The new law changes litigation of pay discrimination claims in the following ways:

        (1)       Resets the statute of limitations clock for filing a wage claim each time an employee receives a paycheck, benefits, or “other compensation,” allowing an employee to sue for alleged discrimination based on when she is  impacted rather than when the decision occurred.

        (2)       Applies to alleged discriminatory pay practices based on all protected categories, including race, gender, age, color, disability, national origin and religion.

        (3)       Expands the definition of an unlawful employment practice to include not only discreet “decisions” regarding compensation, but also any “other practice” that affects an employee’s compensation.

 

The statute applies retroactively back to May 27, 2007.

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In a move patterned after the proposed Employee Free Choice Act, which would apply to private sector employees, the General Assembly’s Labor and Public Employees Committee recently voted favorably (9-2) on a bill that would allow state and municipal employees to unionize without the use of a secret ballot election. HB-6534 would permit a union of public employees to be recognized as the exclusive representative of an employee unit when a majority of the employees sign union authorization cards. The card authorization process would be triggered when (1) a petition for unionization if filed with the State Labor Relations Board, (2) there is a question or controversy regarding union representation, and (3) there is only one union seeking the designation. At that point, a Labor Board agent would investigate and report his or her findings to the Board. The Board, after providing the parties the opportunity to submit briefs, could determine to certify the union based on a card check alone.

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   Recently the United States Department of Labor promulgated new regulations under the Family Medical Leave Act. School boards should review their policies to assure continued compliance with the FMLA. 

            Noteworthy highlights from the new regulations include:

 

(1)       Military caregiver leave: Expands FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

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The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) provides for a temporary extension of employer-provided group health coverage, which is commonly referred to as COBRA continuation coverage. The American Recovery and Reinvestment Act (“Act”), which President Obama signed on February 17, 2009, includes several changes to COBRA continuation coverage that employers quickly need to address. The most notable impact is a significant reduction in the COBRA premiums paid by certain employees whose employment is involuntarily terminated. Under the Act, eligible individuals are required to pay only 35% of his or her COBRA premium. The remaining 65% of the COBRA premium will be reimbursed to the employer through a payroll tax credit.

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Legislation winding its way through the General Assembly could mandate that local and regional boards of education employ automatic external defibrillators as soon as July 1, 2009. In fact, S.B. 981 as proposed requires schools to train personnel in defibrillator operation and in the use of cardiopulmonary resuscitation at each school under the board’s jurisdiction. In addition, a defibrillator and trained personnel would be required to be accessible during the school’s normal hours of operations, during school-sponsored athletic practices and athletic events that take place on schools grounds, and during school sponsored events that occur before or after normal operational hours. 

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Recent amendments to the Americans with Disabilities Act (“ADA”) are certain to have a far-reaching impact on employers, as the new amendments expand the ADA’s reach and reverse an employer-friendly trend in court decisions that interpreted the statute. By expanding certain key definitions, the 2008 ADA Amendments bring within coverage of the statute a large number of individuals previously excluded. Although the ADA maintains its primary definition as to what it means to be disabled (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”) the amendments expand what it means to “substantially limit,” what constitutes a “major life activity,” and alters the “regarded as disabled” analysis. The new legislation became effective on January 1, 2009.

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The United States Department of Labor, the agency charged with the task of interpreting the Family Medical Leave Act (FMLA), issued final revised regulations to the Act on November 17, 2008. The regulations will take effect on January 16, 2009, just days before President-elect Barack Obama takes office. The regulations mark the first major regulatory update of the legislation in more than thirteen years, and many believe signals the beginning of some significant changes to the Act. Although the new regulations appear employer-friendly, the President-elect has proposed expanding coverage of the Act to smaller employers and allowing leave under a broader range of circumstances, including for elder care, domestic violence, and for children’s educational activities, thereby creating a more employee-friendly scheme. 

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Through H.R. 3195, our 110th Congress has vastly expanded the reach of the Americans with Disabilities Act, by effectively bringing within its reach a large number of individuals previously excluded under the current  jurisprudence interpreting the Act. The Act still maintains its primary definition as to who is included thereunder (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”), but calls for an expansion of what it means to “substantially limit,” what constitutes a “major life activity,” and  what it means to “be regarded as disabled.” 

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Today's bills filed in the General Assembly include Raised Bill 5833, a proposed amendment to Connecticut General Statutes Section 53a-119, which would add as a felony criminal charge "obtaining school accommodations by misrepresenting a child's residence".  This would be defined as a parent, guardian or person acting on behalf of such person (or student if over the age of 18), intentionally misrepresenting the town of residence of the child, with the intent to obtain school accommodations from a school district other than the one in which the child resides.

Although other sections of the criminal code relating to theft of public goods have been cited in connection with the arrest of parents in connection with this type of offense, this would make it clear that such conduct is a criminal offense without having to rely on an interpretation of another more general section of the criminal code.  This bill has been referred to the Judiciary Committee.

For other new bills filed, read on...

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The Connecticut State Board of Labor Relations recently issued a decision, Region 16 Board of Education, Decision No. 4270 (2007), in which it held that a unilateral change in the workload of Special Education Teachers constituted a prohibited practice. In doing so, the Board created an exception to the general rule that a unit wide fixed practice must be demonstrated in order for a union to establish a unilateral change based upon prior practice. 

Generally, it is an unfair labor practice for an employer to change a term or condition of employment in the face of a unit wide fixed past practice. Accordingly, where there has been a mixed practice, unions have been hard pressed to prove a violation. 

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In a decision rendered recently by the American Arbitration Association, a AAA Arbitrator has ruled that a board of education had just cause to terminate a custodian with a relatively unblemished record for repeatedly leaving work early and recording on their time sheets that they had worked their full shift. The case involved two evening shift custodians at Hawley School in Newtown. As is the case with many of Connecticut’s schools, there is no on-site supervision outside of the bargaining unit in the evenings. It was discovered these employees would routinely leave early yet record on their time sheets that they had worked the full shift. Relying on the fact that the collective bargaining agreement made it clear that no employee could leave early without authorization, and that the time sheets explicitly stated “FALSIFICATION OF TIME SHEETS IS CAUSE FOR IMMEDIATE DISMISSAL,” the arbitrator concluded that the employees clearly should have known that leaving early was grounds for termination. Although progressive discipline is normally required, the Arbitrator noted that “some acts of misconduct are so grave that progressive discipline is neither required nor appropriate.”, and “Repeated theft of time and filing false time records are acts of moral turpitude for which it is generally recognized that progressive discipline is not appropriate.” Readers interested in obtaining a copy of the decision can contact Floyd Dugas.

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On May 23, 2007, the Equal Employment Opportunities Commission (EEOC) issued guidance on the treatment of employees with “caregiver responsibilities.” While the federal discrimination statutes do not directly prohibit discrimination against “caregivers,” the new EEOC guidance does note that discrimination against caregivers that is grounded in a federally protected class, such as sex or disability, can be used as a basis for such a claim. “Family Responsibility Discrimination” as the theory is becoming known, is gaining popularity.  School Districts are not immune from such claims. Generally speaking, a caregiver is one who provides daily care for a child, elderly or disabled family member. Typically the caregiver is a female. Of course, however, such claims are not limited just to women. Such claims have typically arisen in the following situations:

·     Denying a woman an assignment or promotion based on the belief that she may not want to work the extra hours or to relocate.

·     Disciplining a caregiver for absenteeism disproportionately to an individual without caregiving responsibilities.

·     Failure to hire based upon stereotypical assumptions about external demands.

·     Denying a leave of absence or intermittent leave to deal with an ill or disabled family member.

·     Failing to hire a single mother (or father).

·     Subjecting a woman to a hostile environment because she is a parent with a young child or cares for a family member with a disability.

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On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”). Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (“FMLA”). The NDAA provides two new types of FMLA leave to employees with family members serving in the military:

1. Caregiver Leave: Permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The leave described in this paragraph is only available during a single 12-month period. This caregiver section is effective January 28, 2008.

2. Call to Duty Leave: The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Technically, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.” Continue Reading...

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In at least partial response to an incident in which a pedestrian was struck and killed by a school bus driver who had cocaine in his system, a law has been passed which now requires background checks and random drug testing of school bus drivers. While bus drivers employed by school districts are already subject to background checks, the law imposes a similar requirement on bus drivers employed by outside bus services. 

 

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There has been some confusion lately as to whether state statutes concerning appropriate license endorsements for school buses also apply to the drivers of passenger cars used to transport school students to extracurricular activities. So much confusion, that the State of Connecticut Department of Motor Vehicles (DMV) recently received a Petition for Declaratory Ruling seeking clarification on this subject from the DMV. 

Due to the level of interest in this matter, and the number of persons and organizations that could be affected by a Declaratory Ruling, the DMV has scheduled a public hearing to take place on Wednesday, August 15, 2007 at 10:00 a.m. at the Rowland State Government Center, 55 West Main Street, Waterbury, Connecticut.   

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Since the September 11, 2001 terrorists attacks, more onerous rules have been put into place regarding foreign visitors attending schools in the United States. On March 1, 2003, enforcement of the immigration laws, formerly provided by the Immigration and Naturalization Service (INS), were transferred to the Department of Homeland Security. The service and enforcement responsibilities of the INS are now the responsibility of the U.S. Citizenship and Immigration Service (USCIS), a separate bureau of the Department of Homeland Security.

Whether a school district may freely accept a foreign student into its program will depend on the type of visa assigned to the student. A complete list of non-immigrant visa classifications and information regarding each classification may be found on the USCIS website.  Generally speaking, however, foreign students who plan to come to the United States under an F1 or M1 visa may only attend schools that have been approved by the USCIS. Accordingly, school districts must inquire as to the visa status of any foreign students seeking to attend, and will need USCIS approval in order to enroll students with F1 or M1 visas. School districts do not need approval in order to accept students with other visa designations, including the children of an F1 and/or M1 students. These students would typically have an F2 or M2 designations. 

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On Wednesday, May 23, 2007, Floyd J. Dugas was a speaker at the Connecticut Association of Boards of Education Presentation on Collective Bargaining for school districts. Following is a synopsis of some of the Practical Suggestions and Hot Topics discussed by Floyd during his presentation.

Negotiation

• Begin preparation months before your official start date for teacher negotiations.
• Collect and evaluate the data at this early stage – know the anticipated cost of step; how your salaries compare to those in surrounding and similar districts; speak to your insurance consultant as to where changes can be made.
• Interest Based Bargaining (as compared to traditional bargaining) has some advantages, but can be very time consuming. If you are considering it, start the process at least four (4) months prior to when you normally would.
• If you end up in arbitration, start with a witness who can clearly and convincingly explain the fiscal challenges facing your community; use graphs, charts and pictures where you can and make your presentation focused and meaningful.
• The use of experts to explain insurance and pension issues is essential; but make sure you understand the terms they are using and exactly what they are going to testify as to.
• Arbitration awards have been trending .20 to .25% per year lower than settlements in teacher negotiations, so provided the dollars at issue are large enough, do not be afraid of arbitration.
• Never forget, however, a negotiated or mediated settlement is usually preferable to an arbitration award.

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If so, there may be issues as to whether such individuals are “volunteers” or employees under state and federal wage and hour law. 

Opinion Letter FLSA 2006-40 is the most recent opinion letter on the subject, though there are many other opinion letters which have been issued in the past dealing with the subject as well. DOL Opinion Letter FLSA 2006-40 was written in response to a letter written on behalf of a number of school districts concerning guidance regarding the use of non-exempt school system staff to assist with coaching sports or other extracurricular activities, either as volunteers or as additional duties. In the Opinion Letter, the DOL addresses several hypothetical situations and analyzes whether compensation or overtime would be due in each given situation.  

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