Supreme Judicial Court Sustains Exclusive Representation Under Massachusetts Collective Bargaining Law Despite Janus Decision

Federal Court Rules that Whether a Part-Time Assignment is a Reasonable Accommodation for a Full-Time Teacher with a Disability is Dependent on the Specific Facts

In a recent decision the United States District Court for the District of Massachusetts has ruled that a request by a full-time teacher to work part-time for medical reasons may constitute a reasonable accommodation under the federal and Massachusetts statutes which bar discrimination against an employee with a qualifying disability. In Incutto v. Newton Public Schools, et al., Civil Action No. 16-12385-LTS, the court denied the school district’s motion for summary judgment and held that the teacher had presented sufficient evidence to let a jury decide the case. The plaintiff was employed as a full-time kindergarten teacher but after being diagnosed with a qualifying medical condition had requested that she be assigned part-time teaching duties. The school district argued that because her position was full-time, an essential function of her job was attendance during the regular school-day hours of 8:20 AM to 3:30 PM Monday through Friday. The parties agreed that other than being present full-time the teacher could perform all the other required functions of her teaching position.

The court concluded that whether full-time attendance was an “essential function” would have to be decided after trial. It pointed to evidence in the record that for each of ten school years between three and seven elementary school teaching positions were job-shared by two teachers in the district and that in the three years before that the plaintiff herself had worked as a part-time teacher by job-sharing with others. Based on this the court held that the plaintiff had produced enough evidence to go before a jury on the question whether full-time presence was an “essential function” of her job and, therefore, whether her requested accommodation was unreasonable.

This case demonstrates how fact-specific is the inquiry which an employer must make when an employee requests an accommodation. Evidence as to whether the employer has imposed the same requirement on all similarly-situated employees will necessarily be relevant to making that determination.

If you have questions or concerns about this issue, or about school law generally, please contact any of our attorneys.

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

Attorneys Liz Valerio and John Foskett to Present at MASBO Law Institute Workshop

Attorneys Liz Valerio and John Foskett will present at the Massachusetts School Business Officials (MASBO) Workshop on April 10, 2019. Liz and John will discuss hot topics in school law such as Hourly Employees, Social Media and Copyright Issues, Collective Bargaining, Budget Development and Budget Hearings, Revolving Accounts, Classroom Fundraising, Gifts and Grants, Uniform Grant Guidelines, and Potential School Finance Reform (legislative update).

Attorneys Liz Valerio and Nick Dominello to Present at Annual MASPA Law Day

Attorneys Liz Valerio and Nick Dominello will present at the annual School Law Day conference of the Massachusetts Association of Personnel Administrators (MASPA) on March 1, 2019.  Liz and Nick will discuss public records requests and open meeting law complaints, educator and staff misconduct investigations and provide a brief update on issues associated with medical marijuana in schools.

Massachusetts Council of School Attorneys Annual Meeting

The Massachusetts Council of School Attorneys (COSA) held its annual meeting on December 7, 2018.  John Foskett was the Program Moderator and COSA Board of Directors President in 2018.  He also presented on a recent DLR Hearing Officer Decision and Commonwealth of Employment Relations Board Decision regarding a Massachusetts School District and the District’s rights regarding “core education policy” decisions.

Nominations were held for the COSA 2019 Board of Directors.  Nicholas J. Dominello was voted in as a Member at Large for 2019.


Superior Court Issues Ruling on the Merits of Constitutional Challenge to Natick’s Public Comment Policy

In June 2018 we reported that the Middlesex Superior Court had granted a preliminary injunction which enjoined the Natick School Committee from enforcing certain restrictions on public comment at school committee meetings which are set out in its public comment policy [see prior client advisory of 6-7-18]. On November 21, 2018 the court entered a ruling on the merits of the case, Spaulding, et al. v. Town of Natick School Committee, Civil Action No. 2018-01115. The court’s decision granted summary judgment in favor of the plaintiffs, who are the parents of two former (unrelated) students. They had claimed that the School Committee’s enforcement of its policy by restricting their statements during public comment sessions violated their right of free speech under Article 16 of the Massachusetts Declaration of Rights.

The court assessed their claim by applying rules under the analogous provision of the First Amendment to the United States Constitution. Concluding that the public comment session is a “designated public forum” for speech, the court evaluated Natick’s public comment policy.

  1. The court first addressed that part of the policy which barred “personal complaints of school personnel nor against any member of the school community”. The court held that this limitation is permissible only to the extent that it covers complaints about employees who are not within the School Committee’s direct responsibility or about students. It held, however, that the policy is unconstitutional as it pertains to complaints about an employee within the Committee’s direct responsibility, such as the superintendent, or complaints about “school operations and programs” which are within the Committee’s purview. The court also ruled that the Committee could not prevent the speaker from identifying persons named in connection with permissible complaints.
  2. With respect to the policy’s restriction of “criticisms” to those which are “objective”, the court held that the Committee could not preclude a speaker from making “subjective” comments if those comments “concern the speaker”.
  3. In addition, the policy barred “defamatory” statements. The court held that this limitation was unconstitutional except as to remarks which already have been “adjudicated” defamatory.
  4. As to the policy’s preclusion of comments which are “improper” or “abusive”, the court held that this is lawful only to the extent that the comments involve “threats”, “fighting words”, remarks “likely to provoke a violent reaction”, or “obscenities”. The court did point out that speakers can be barred from making statements “that they know to be false” and that the policy can also lawfully bar “improper conduct”.

This is a trial court decision which is binding only on the parties to the case. Nonetheless, because much of the content in Natick’s policy also appears in a model policy provided by MASC, the issues will likely be of import for many school districts. Among items left unaddressed by the court, and presumably lawful, is the school committee’s authority to prevent “disruption” of its meetings – with the important caveat that in its earlier injunction order the court had issued an admonition that this could not apply to speech that is “school-related” and is “delivered in a calm manner”. Moreover, the court was not asked to address time limits on speech during public comment. So long as these are reasonable and administered uniformly to all speakers without regard to subject matter or viewpoint, such limits should pass constitutional muster.

Technically part of the lawsuit remains pending, so the Natick School Committee is probably not yet able to appeal unless the trial court reports the case. We will continue monitoring the case to determine whether the appellate courts will become involved. In the interim, it may make sense for committees to review their public comment policies with an eye to this ruling.

If you have questions or concerns about this issue, or about school law generally, please contact any of our attorneys.

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

Upcoming Changes to Law Regarding Student Use of Tobacco

In July 2018, the Massachusetts Legislature passed “An Act Protecting Youth from the Health Risks of Tobacco and Nicotine Addiction” to reduce youth access and use of tobacco and nicotine products, including vaporizers. The legislation impacts individuals, businesses, government agencies, as well as educational institutions. The impacts to educational institutions, as outlined below, go into effect on December 31, 2018.

The Act changes the language of G.L. c. 71, § 2A which prohibits student tobacco use (not possession or sale) on school grounds. Our public school clients are encouraged to carefully review the law’s new definition of “tobacco product,” which now includes:

A product containing, made or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic cigars, electronic pipes, electronic nicotine delivery systems or any other similar products that rely on vaporization or aerosolization; provided, however, that “tobacco product” shall also include any component, part or accessory of a tobacco product; and provided further, that “tobacco product” shall not include a product that has been approved by the United States Food and Drug Administration for the sale of or use as a tobacco cessation product and is marketed and sold exclusively for the approved purpose.

The new definition encompasses vaping and electronic tobacco products, and therefore prohibits student use of those products on school grounds. It also includes “any component, part or accessory of a tobacco product,” meaning that students may not use tobacco products, such as vaporizers, even if they do not actually contain tobacco, including if they are empty. Additionally, while many vaping product manufacturers hold themselves out as smoking cessation devices, there are no vaping products that are FDA approved smoking cessation devices that would be excluded from the definition.

The law continues to require school committees to maintain a policy regarding student tobacco violations. This change in the law presents an opportunity for school committees to review and revise their policies and student handbooks to include the prohibition of vaping products. Our team can assist in reviewing and revising these policies.

If you have any questions on the changes to this law or how the changes may impact you, please contact any of our attorneys.

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

Supreme Court Holds Age Discrimination in Employment Act Applies To All State And Local Governments

In an 8-0 decision issued this morning, the Supreme Court held in Mount Lemmon Fire District v. Guido et al., No. 17-587 (2018) that the federal Age Discrimination in Employment Act (“ADEA”) applies to all state and local governments, regardless of  how many employees they have.

In 2009, faced with a budget crisis, the Mount Lemmon Fire District (“District”), a political subdivision of the state of Arizona, laid off its two oldest firefighters, aged 46 and 54. The firefighters sued the District, alleging their terminations violated the ADEA.  The District sought to dismiss the suit on the grounds it did not meet the definition of “employer” pursuant to the ADEA.  The ADEA defines an “employer” as:

A person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

The District employed less than 20 individuals, and therefore argued it was not an “employer” subject to the ADEA. The firefighters took the position, however, that the latter portion of the definition specifically considered states and their subdivisions to be employers without regard to their number of employees.  Accordingly, the question before the Court was whether the ADEA’s numerosity specification (20 or more employees), applied to a State or political subdivision of a State.

Specifically, the court addressed the issue of whether “also means” adds new categories to the definition of employer, or merely clarifies that states and their political subdivisions are subject to the first sentence of the definition. Federal courts have been consistently divided on this question; however, here the Court concluded that the phrase “also means” adds new categories of employers within the ADEA’s reach.  In so deciding, the Court stated that “the ordinary meaning of ‘also means’ is additive rather than clarifying.”

The Court also addressed the District’s argument that the ADEA should be interpreted in line with Title VII of the Civil Rights Act of 1964 (“Title VII”) which only applies to states and political subdivisions that meet the numerosity specification. While the Court acknowledged that its decision would give the ADEA a broader reach than Title VII, it characterized the disparity as a “consequence of the different language Congress chose to employ” and pointed out that the ADEA is more similar to the Fair Labor Standards Act (“FLSA”) which also ranks states and political subdivisions as employers regardless of their number of employees.

As a result, all state and political subdivisions (such as local governments) are subject to the requirements of the ADEA without regard to how many individuals they employ.

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

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

VDH Attorney Obtains Significant Appeals Court Ruling on Status of ROTC Student for Child Support

In what appears to be the first reported decision by an appellate court in the country, on October 18, 2018 the Massachusetts Appeals Court has ruled that a student did not “enter the military” or, therefore, become emancipated for purposes of  child support when he obtained an Army ROTC scholarship. VDH attorney John Foskett represented the mother in Bobblis v. Costa, 94  Mass.App.Ct. 264 (2018). Attorney Foskett successfully argued that applicable federal statutes and the fact that a ROTC scholarship recipient remains a full time student at his or her college without governmental control over the student’s daily activities differentiate the student’s status from that of an enlistee or of a cadet/midshipman at one of the military academies. The court therefore rejected the father’s claim for retroactive reimbursement of child support payments.

Two VDH Attorneys Named 2018 Massachusetts Super Lawyers and Rising Stars

Robert D. Hillman has been named a Massachusetts Super Lawyer for 2018 and Nicholas J. Dominello has been named a Massachusetts Rising StarSuper Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  This selection process includes independent research, peer nominations and peer evaluations.  Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.