On August 14, 2020, the new Title IX regulations, enforced by the U.S. Department of Education (“DOE”), will go into effect. As discussed in our May 13, 2020 advisory on this topic, available here, the regulations have many new requirements for sexual harassment policies and procedures that need to be in effect by August 14, 2020.

There is currently litigation pending to stay the implementation of these new regulations; however, it is unlikely that such litigation will be resolved prior to the date the new regulations are due to take effect.  Additionally, several organizations and school districts have asked the DOE to delay the implementation of these new regulations.  However, as of today, these requests have not resulted in a change to the August 14^th effective date.

Therefore, absent a delay in the implementation date for these new regulations, which at this time seems unlikely, school committees will need to update their sexual harassment policies and procedures to bring them into compliance with these new regulations by August 14^th.  In addition, the new regulations require training on the revised policies and procedures for all administrators serving as Title IX coordinators, investigators, and decision makers  Our office is available to review and update policies as well as to provide the required training for administrators.

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

Last week, the Appeals Court issued a decision in City of New Bedford v. New Bedford Police Union (97 Mass. App. Ct. 502) affirming a Superior Court’s decision vacating an arbitration award that found the City of New Bedford (“City”) violated the parties’ collective bargaining agreement with the New Bedford Police Union (“Union”) “when it assigned officers to perform background investigations during their normal work hours in addition to their typical duties.”

The Union filed a grievance alleging that the Chief was assigning officers to perform background checks of employment applicants in addition to their regular duties during working hours in violation of the parties’ CBA. The agreement contained a requirement that officers must be assigned full time to performing background checks, as well as several other provisions related to performing these checks. The City denied the grievance arguing that the parties’ CBA did not preclude the Chief from assigning investigations to officers as part of their required duties. The matter proceeded to arbitration.

The arbitrator issued an award in favor of the Union, finding a violation of the CBA. The arbitrator found that the swift completion of background checks was the only public safety concern implicated and therefore that the Chief was required to make assignments in accordance with the agreement. The arbitrator rejected the Chief’s view as to how best to serve the City’s public safety needs, opining instead that the City was simply attempting to avoid overtime payments to officers.

The City filed a complaint in Superior Court, and a Superior Court judge vacated the award on the grounds that “the arbitrator exceeded his authority by substituting his judgment and decision making for that of the police chief.”

On appeal, the Union argued that the grievance did not concern the assignment of background investigations, but rather the method of effectuating the assignments and therefore the City was required to follow the terms of the CBA. The Appeals Court disagreed with the Union’s argument and held that the assignment of officers was “neither subject to collective bargaining, nor delegable to arbitration.” The Appeals Court found that “controlling precedent” required the finding that the provision in the collective bargaining agreement infringed upon the nondelegable authority of the Police Chief. The Court also held that under Massachusetts law, a municipality cannot be required to surrender this nondelegable authority or do so voluntarily.

If you have questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Last week, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 14, 2020.  These regulations require training and changes to school district policies and procedures regarding sexual harassment.  Among the changes are:

Notice of Sexual Harassment
The regulations require a school district to respond when the district has actual notice of sexual harassment.  The new regulations now make explicit that a K-12 school district has actual knowledge when an allegation is made known to any district employee.

Complaint and Investigation Process
The new regulations require the involvement of three different individuals to address sexual harassment complaints: the complaint manager (usually the Title IX Coordinator); the investigator, and the decision-maker.  Under the new regulations, all individuals involved in managing, investigating, and deciding sexual harassment complaints must be trained on conducting investigations free of bias.

The new regulations require that the alleged harasser, referred to as the respondent, receive written notice of the allegations before any investigatory interview.  During the investigation, the complainant and respondent must have equal opportunities and time to present and respond to evidence.

A school district may facilitate an informal resolution such as mediation provided that the complainant and the respondent consent, but the school district cannot compel the complainant or respondent to engage in an informal resolution.  Informal resolutions are never available in situations where an employee is alleged to have sexually harassed a student.

Notice of Title IX Coordinators
Previously, school districts only needed to notify students and employees of the Title IX Coordinator’s contact information.  Now, school districts must also notify applicants for employment, parents and guardians of students, and unions of the Title IX Coordinator’s contact information.

Definitions
The new regulations narrowed the definition of sexual harassment into three categories.  Under the new regulations, one category of sexual harassment is unwelcome conduct that is severe, pervasive and objectively offensive that it denies educational access.  This deviates from prior guidance issued by the DOE that previously stated that the conduct had to be severe, pervasive or objectively offensive.

Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence.  The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).

Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August  14^th and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints.  Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding the new regulations, please contact us.

This update is provided for informational purposes only and does not include all of the changes in the new regulations.  This update should not be considered legal advice.

On Friday, May 1, 2020, the Appeals Court issued a decision regarding the nondelegable management rights afforded to fire chiefs in the Commonwealth, and the extent to which those rights permit fire chiefs to make unilateral policies and decisions on matters affecting public safety.  The decision, Town of Dracut v. Dracut Firefighters Union, IAFF Local 2586 (19-P-14), addressed a policy implemented by a fire chief that restricted attendance of on-duty firefighters at union meetings to address public safety concerns.

As recounted in the decision, the town’s fire department is staffed twenty-four (24) hours per day each day at three different stations: central, east and west.  In 1986, when the department only operated two stations, the town and union included language in the collective bargaining agreement (“CBA”) permitting the union to hold monthly meetings at the central station to ensure attendance of all members.  Until 2016, the parties maintained a practice of permitting firefighters at the east and west stations to attend union meetings at the central station.  In April 2016 the fire chief, concerned about potential delays in response times if crews were departing from the central station as opposed to their assigned stations after attending union meetings, issued a new policy rescinding permission for on-duty firefighters at the east and west stations to attend union meetings at the central station.  The policy did not apply to other activities at the central station such as inspections, training, drills, etc.

The union grieved the new policy, and the matter proceeded to arbitration.  The arbitrator ruled in favor of the union.  However, the town successfully vacated the arbitration award in Superior Court where the court concluded that the award intruded upon the nondelegable authority of the chief to manage the fire department pursuant to G.L. c. 48, § 42.  Specifically, the Superior Court determined that the arbitrator exceeded his authority by usurping the chief’s nondelegable authority to manage the workforce and make decisions pertinent to matters of public safety.

The Appeals Court, however, disagreed and reversed the Superior Court’s decision, requiring the Superior Court to confirm the arbitration award.  At the outset of its decision, the Appeals Court recognized the longstanding nondelegability doctrine, which limits the reach of the requirement to negotiate over mandatory subjects of bargaining where public policy requires that a public employer reserve certain matters to its sole discretion to preserve accountability in performing essential government functions.  As it relates to fire chiefs, the Appeals Court acknowledged the language of G.L. c. 48, § 42, which imbues fire chiefs with “…full and absolute authority in the administration of the department, [and] shall make all rules and regulations for its operations…”

While fire chiefs, like other public safety officials, are statutorily charged with broad authority to preserve department operations, here the Appeals Court did not find this authority was sufficient to unilaterally change the union meeting policy.  Indeed, the Appeals Court noted, a policy impacted response time can raise an important public safety issue – however, it found the town failed to demonstrate the existence of a public policy or core managerial function to justify denying bargaining over the issue.  Specifically, the Appeals Court found that the policy was “directed solely to attendance at union meetings” and that such a policy is “not fundamental to the effective operation of an enterprise.”  At its core, this case was “about whether union officers and members may attend union meetings…” which the Appeals Court recognized as essential to the right to self-representation under G.L. c. 150E.  Lastly, the Appeals Court made a point to distinguish this matter from cases involving the nondelegable authority of police chiefs.

This decision demonstrates how closely courts will scrutinize the nondelegable management right doctrine and whether an arbitration award violates Massachusetts public policy.  While on its face the decision might appear to unduly hamper the management rights of fire chiefs, the resulting decision actually appears to be narrow to the particular facts at issue.

If you have questions or concerns regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On April 28, 2020, the Supreme Judicial Court of Massachusetts (SJC) issued a decision regarding the delegation of a superintendent’s statutory authority to hear a student’s appeal from a principal’s decision under M.G.L. c. 71, § 37H.

In Doe v. Worcester Public Schools, SJC-12827, a student in the Worcester Public Schools was suspended for 152 school days after a hearing before the principal pursuant to the district’s student disciplinary rules and M.G.L. c. 71, § 37H. The student appealed the principal’s decision pursuant to M.G.L. c. 71, § 37H. The school safety director, the superintendent’s designee, conducted the appeal hearing and reduced the suspension to 112 school days.

The plaintiff student brought a lawsuit against the district, arguing that the district violated M.G.L. c. 71, § 37H(d) by designating the school safety director to hear the student’s appeal of the principal’s decision. The plaintiff student argued that a disciplinary hearing pursuant to M.G.L. c. 71, § 37H must be held by the superintendent, not their designee.

In interpreting M.G.L. c. 71, § 37H, the SJC noted the statute is clear: “expelled students have a right to appeal to, and have a hearing before, the superintendent.” In comparison, the SJC examined M.G.L. c. 71, § 37H ¾ which explicitly permits a superintendent or a designee to hear an appeal of a principal’s decision. The SJC reasoned this statutory distinction “makes sense” because M.G.L c.71, § 37H may result in a permanent expulsion for serious offenses (i.e. assault on school staff, possession of a dangerous weapon, possession of a controlled substance), whereas discipline under M.G.L. c. 71, § 37H ¾ results from less serious offenses. The SJC held that granting students the ability to appeal directly to the superintendent when facing discipline for serious offenses under M.G.L. c. 71, § 37H provides these students greater procedural protections.

The Massachusetts Department of Elementary and Secondary Education had previously provided an interpretation of M.G.L. c. 71, § 37H that permitted districts to delegate the appeal duties. The SJC rejected this interpretation.

In summary:

• Disciplinary appeals under M.G.L. c. 71, 37H (assault on school staff, possession of a dangerous weapon, possession of a controlled substance) should be heard directly by the superintendent.
• Disciplinary appeals under M.G.L. c. 71, 37H ½ (felony complaint or conviction), while not addressed by this decision, contain the same statutory language as M.G.L. c. 71, § 37H, and should be heard directly by the superintendent.
• Disciplinary appeals under M.G.L. c. 71, 37H ¾ may be heard by the superintendent, or a designee.

If you have questions or concerns about this issue, or about school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.