CERB Rules That Teachers Participated In Illegal Strike

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.

Department of Labor Revises Regulations on Families First Coronavirus Response Act

Following a decision from a federal court in New York vacating portions of the Families First Coronavirus Response Act (“FFCRA”) regulations, the Department of Labor (“DOL”) recently published revised regulations addressing the court’s decision.

Notably, the revisions establish a new definition for a “health care provider” after the New York court found the previous definition to be overly broad.  The revised regulations define a health care provider the same as the Family and Medical Leave Act (“FMLA”), which is (i) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery; or (ii) any other person determined to be capable of providing health care services.

The revisions also amended other portions of the regulations.  Previously, the regulations directed employers to obtain required FFCRA leave documentation from employees prior to taking leave.  Now, the regulations clarify that employees can submit this documentation to employers as soon as practicable.  Additionally, the revisions state that an employee seeking expanded family and medical leave (“EFMLA”) under the FFCRA should notify their employer as soon as practicable, when before, the regulations did not address the timeframe in which employees needed to notify employers of their need for leave.

Despite being directed to do so by the federal court, the revisions did not amend portions of the regulations which limit FFCRA leave to employees who have work otherwise be available to them, and that require an employer’s approval to take FFCRA leave intermittently.  However, the DOL provided additional explanations for these regulations should they be challenged again.

Furthermore, the DOL addressed employee requests for intermittent EFMLA when the employee’s child is enrolled in a school with an alternate date or other hybrid-attendance program.  The DOL stated that “each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day.”  As a result, the DOL states, intermittent leave is not needed for employees whose children are enrolled in such a program.  Rather, intermittent leave would apply in a situation where the school or daycare is closed for a period of time, and the employee only seeks leave for “certain portions of that period for reasons other than that school’s in-person instruction schedule.”   That being said, the regulations still require employer approval for intermittent leave.

The revised regulations go into effect on September 16, 2020.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

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

Reminder – New Title IX Regulations Going Into Effect on August 14, 2020

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 3rd 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 14th 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.

Federal Court Vacates Portions of FFCRA Regulations

Yesterday, a federal court vacated portions of the Families First Coronavirus Response Act (“FFCRA”) regulations.  In April, the U.S. Department of Labor (“DOL”) issued regulations interpreting the FFCRA, which provides paid leave time to employees impacted by COVID-19.  The New York Attorney General challenged portions of the regulations, and the matter proceeded to a U.S. District Court in New York.

Specifically, the court addressed the following parts of the FFCRA regulations:

  • The regulations contained a rule excluding benefits from employees whose employers did not have work available for them. The court vacated this exclusion.
  • The regulations defined a “health care provider” that could be excluded from FFCRA benefits. The court vacated this definition.
  • The regulations required that an employer consent to an employee’s request for intermittent leave. The court vacated this requirement.
  • The regulations required an employee to submit certain documentation ahead of being granted leave under the FFCRA. The court vacated this requirement.

We are monitoring this matter closely and await revised regulations from the DOL.  In the interim, employers should revise FFCRA leave practices consistent with the above changes.  For example, an employer should accept requests for intermittent leave, and should not require an employee to submit a written request for leave in order for the employer to consider providing such leave.

If you have questions regarding this advisory, addressing FFCRA leave going forward, or labor and employment law generally, please contact us.

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

DESE Permits 2020-2021 School Year Delay and Student Learning Time Reduction

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 16th 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 16th.  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.

Reminder – New Title IX Regulations Going Into Effect in August 2020

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 14th 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 14th.  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.

Fall School Reopening Guidance

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.

Appeals Court Affirms Nondelegable Authority of Police Chiefs

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.

U.S. Department of Education Releases Guidance on Providing Services to English Learners During COVID-19 Pandemic

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.

U.S. Department of Education Publishes New Title IX Regulations Requiring Policy Updates and Training

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  14th 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.