The Commonwealth Employment Relations Board (“CERB”) recently issued a decision holding that Andover Public Schools teachers participated in an illegal strike in violation of G.L. c. 150E, § 9A when they refused to enter school buildings on the first work day of the school calendar for 2020-2021 and insisted instead on performing their work outside the buildings on a remote basis.

In Andover Education Association, No. S.I.-20-8176 (Sept. 8, 2020), the district had designed, and then obtained approval from DESE for, a “hybrid” school reopening plan.  Teachers were directed to report to their designated buildings on the first day of the work year to engage in professional development – no different than any other year.  The variation in this year’s professional development work, however, was based on the Commissioner of DESE’s reduction of student learning time by 10 days, from 180 to 170, pursuant to emergency regulations and on his entry into an MOU with the MTA, AFT, and Boston Teachers Union that the 10 days would instead be devoted to reopening “preparation” work.  The district therefore scheduled activities for the first day that included tasks mandated by DESE’s COVID-19 reopening guidelines such as moving desks, testing Wi-Fi operation between classrooms and offices inside the buildings, and wayfinding around the buildings to learn new walking paths.

The union voted to have its members engage in what was labeled a “workplace safety action” in which teachers would allegedly work remotely outside of the buildings which they claimed had HVAC concerns.  As a result, many teachers did not accomplish their assigned duties for that day.  The School Committee filed a strike petition and the Department of Labor Relations’ strike investigation promptly ensued on September 3, 2020.  The CERB issued its decision on September 8, finding that those teachers who refused to enter their schools had engaged in an illegal strike and that the union and its officers also had violated the statute by condoning and encouraging a strike.

The CERB found first that the duties scheduled for the first day were required and were established by consistent practice even though the specific tasks may have been new for this school year.  It pointed out that the scheduled tasks inside buildings were an intrinsic part of the teachers’ duties given the unique circumstances of this school year arising from the pandemic.  The CERB noted that the union cited no authority permitting its members to “unilaterally dictate where they perform their work.”  It emphasized that a strike that violates § 9A is not limited to a full or partial refusal to perform duties but also covers a concerted refusal to report for duty.  The issue, therefore, was what constitutes reporting for duty under the law.

The CERB concluded that the phrase “report to duty” in G.L. c. 150E, § 1 “means reporting not only when but where the employer has ordered its employees to report.  In this case, that means inside the school buildings, including inside classrooms.”  The CERB expressly rejected the union’s argument that the law permits an employee to report to any location from which an employee can perform duties remotely.  Finally, the CERB ruled that despite labeling what happened as a “workplace safety action”, the union had presented insufficient evidence of circumstances giving rise to an “imminent risk of serious injury or death” such as might justify a refusal to enter the buildings.

The CERB therefore ordered the union and its officers to cease and desist; ordered the union’s officers to notify union members of their obligation to fully perform their duties; and ordered them to inform members of the contents of the order.

This decision addresses the “new normal” driven by the pandemic, in which remote work and learning are part of the fabric of public education in Massachusetts.  Under this ruling employees who attempt to unilaterally dictate when or where they will perform work, or what work will be performed, now risk being found to have violated Massachusetts law.

If you have any questions about the content of this update, or employment or school law generally, please contact us.

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

Today, 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.

Additionally, on August 3^rd the Massachusetts Association of School Committees (“MASC”) published a revised version of Policy ACAB to adapt to the new Title IX regulations. After review of the MASC model, however, we believe that several revisions are required. The following are most significant:

• The Policy should apply only to sexual harassment and not to harassment generally;
• The Policy must contain timeframes for stages of the investigation process; and
• The Policy must address Title IX complaints from employees.

We also advise that districts adopt the following components within the policy:

• A “preponderance of the evidence” standard;
• Limit appeals from determinations only to those that are required and that it not choose to allow appeals on other grounds, to avoid further entangling administrators in these procedures;
• Do not grant full, trial-like hearings as permitted by the regulations; and
• In addition to a Title IX Coordinator, the new regulations require a separate “decisionmaker” and a separate “investigator.” The policy ought to define who these people are and that generally the building Principal should be the “decisionmaker” and that the “investigator” should generally be the assistant Principal or other appropriate administrator.

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 this update, the new Title IX regulations, or school law generally, please contact us.

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

The Massachusetts Department of Elementary and Secondary Education (“DESE”) is permitting school districts to delay the start of the 2020-2021 school year by 10 days but not later than September 16, 2020, reducing the student school days to 170 days from the current 180 day requirement for the 2020-2021 school year.  Waivers may be available for school districts that are unable to meet the September 16^th start date.

School Committees are not required to reduce the number of student days in the 2020-2021 school year nor are they required to wait to begin classes until September 16^th.  School Committees should  consult their superintendents and leadership teams to assess the needs of educators for additional training to be able to effectively and fully implement the remote and hybrid plans being designed and be prepared to engage with their unions over the number of student days for the upcoming school year.

If you have questions regarding this update, bargaining obligations associated with the reopening of schools for the 2020-2021 school year,  or school law generally, please contact us.

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

On June 25, 2020, the Commissioner of the Department of Elementary and Secondary Education released Initial Fall School Reopening Guidance. Please find the guidance here. If you have any questions, please contact us.

Earlier this week, the U.S. Department of Education (“DOE”) issued new guidance regarding the provision of services to English language learners during remote learning. The comprehensive guidance provides, in part, that while districts are operating via remote or distance learning:

• Districts continue to screen new students to determine their English language status. Students must be screened within thirty (30) days of enrollment and may be done remotely.
• Districts continue to provide language instruction services to English learners, although the DOE notes that “…schools may not be able to provide all services in the same manner they are typically provided.”
• Districts ensure a “continuity in providing services to English learners to the greatest extent possible under current circumstances.” Specifically, the DOE recommends that ELL teachers continue to provide instruction to students who were in self-contained English language programs or receiving pull-out services. In situations where an English language student participated in mainstream classrooms, ELL teachers will continue to collaborate with content-area teachers and provide support and accommodations to English learners.
• Districts provide language accommodations for English learners in content classes that are being held remotely.
• Districts may use Title III funds for teacher training if “specific to” the needs of English learners.
• Districts may not exit an English learner from “English learner” status until the student “has demonstrated proficiency on a valid and reliable assessment that includes the four domains of listening, speaking, reading and writing.” If a district is not able to complete assessments for the 2019-2020 school year due to the COVID-19 pandemic, districts may complete the assessments in the fall of 2020.
• Districts should closely monitor English learners to determine if their proficiency has decreased due to limited instruction during the COVID-19 pandemic. If this is the case, English learners may require additional supports.

The DOE guidance in its entirety can be found at: https://www2.ed.gov/documents/coronavirus/covid-19-el-factsheet.pdf.

The Massachusetts Department of Elementary and Secondary Education (“DESE”) has also issued specific guidance on provisional identification of English learners and guidance, including strategies and resources, to help districts meet the needs of their English learners during remote learning.

The DESE guidance can be found at:

http://www.doe.mass.edu/covid19/ele/.

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

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