In what will no doubt be viewed as a landmark decision, an interest arbitration panel has issued an award which will allow the New Haven Public Schools to privatize 86 of the 186 positions in its custodial and maintenance union, and in the process save nearly $4 million dollars.

Faced with skyrocketing pension and health insurance cost which are expected to outpace the growth in revenues over the foreseeable future, the City of New Haven and its Board of Education were forced to look for ways to substantially cut operating costs.  Having already laid off nearly 300 employees over the last two fiscal years, the Board and the City began to look at other options.

Among the options considered was outsourcing services that could continue to be provided at a substantial savings.  An option that emerged was the outsourcing of school custodial and related services, which cost the Board $16 million per year.  As a result of an RFP, the Board found a national firm willing to perform the same services for just $8 million, which would mean a net savings to the budget of $8 million per year. 


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In a decision which is likely to change the dynamics of interest arbitration proceedings in Connecticut, the Freedom of Information Commission has ruled that the decades long presumption that teacher interest arbitration hearings are closed to the public, is incorrect. 

In the case at issue, the Waterbury Republican-American Newspaper sought entry to an interest arbitration proceeding between the Torrington Board of Education and the Torrington Education Association. The arbitration panel, chaired by Arbitrator Larry Foy, ruled in response to the objection of the Union that interest arbitration hearings are not open to the public. The newspaper filed an FOIA complaint and the Freedom of Information Commission ruled on February 25, 2011, in a case of first impression that interest arbitration panels under the Teacher Negotiations Act are a “committee” of the State Board of Education, thus subject to the requirements of the Act. Accordingly, unless appealed, teacher and administrator interest arbitration hearings will be open to the public. 


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In an opinion by the Honorable Superior Court Judge Henry S. Cohn, the Connecticut Superior Court dismissed the appeal of a teacher whose name was placed on the child abuse and neglect registry after a Department of Children and Families (“DCF”) hearing officer determined, pursuant to Conn. Gen. Stat. § 17a-101g (b), that the teacher had emotionally neglected a student/child and ordered the teacher’s name to be included on the registry. In applying the standards of the State Uniform Administrative Procedure Act, the Court held that DCF’s finding was supported by the substantial evidence in the record, where the evidence showed that a twelve year old male student of the fifth grade teacher reported that he was embarrassed in front of his peers when the teacher called him names, including “cheeks,” “birthing mother,” and “fish out of water,” to connote that he was overweight. The student also claimed that the teacher restricted him to asking no more than ten questions per day, a restriction he failed to place upon other students. If the student asked more than ten questions per day, the teacher would either give the student a detention, or pinch the student’s cheeks. As a result of the teacher’s conduct, the student reported that he was often embarrassed in front of peers, that his academic work was suffering, and that he had difficulty sleeping at night. The student’s mother called the issue to the attention of school administrators, who responded by suspending the teacher for a period of eight days.


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In a decision released by the Connecticut Supreme Court on November 16, 2010, Board of Education of Region 16 v. State Board of Labor Relations et al., Region 16 appealed to the Superior Court challenging a decision by the state board of labor relations (“SBLR”) which concluded that the school district had unilaterally changed a condition of employment in violation of Conn. Gen. Stat. § 10-153e (b) when it increased the workload of four special education teachers during the course of a school year. The SBLR also held that the school district had engaged in unlawful direct dealing with the employees. The Superior Court dismissed the appeal. The school district appealed to the Appellate Court, which, in turn, transferred the appeal to the Supreme Court.


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In Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, 2010 U.S. Dist., LEXIS 527661, (“E.E.O.C. v. Simply Storage”) the United States District Court, Southern District of Indiana, was asked to decide a basic discovery issue in a novel context when the parties to this sexual harassment suit failed to agree on whether or not two claimants must produce internet social networking site (SNS) profiles and other communications from their Facebook and My Space accounts.


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In a deal that some National Education Leaders are heralding as a model for school reform throughout the nation, the New Haven Public Schools and the New Haven Federation of Teachers have struck a deal that paves the way for dramatic reform in the New Haven Public Schools and narrowing the achievement gap. In addition to providing compensation for improved student achievement, the agreement allows the school district to incorporate student performance into the teachers’ evaluation process and in exchange establishes a form of peer review and support. The School District will also have substantial latitude in “turnaround,” or poor performing schools to restructure work rules to improve student achievement.  


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Demonstrating that at least some arbitrators understand the constraints on municipal employers caused by the recession, a panel of arbitrators chaired by Arbitrator Susan Meredith has declined to award a non-certified bargaining unit in the Town of Sterling any wage increase for the 2009-10 fiscal year. It also awarded a 2.5% increase for 2008-09 and a 1.5% increase for 2010-11.


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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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