On Friday, March 18, 2022 Liz and Nick presented at the MASPA School Law Day webinar. Liz and Nick discussed Ongoing Bargaining Trends and Employee Issues Associated with COVID-19.
On March 18, 2022, the Massachusetts Supreme Judicial Court issued a decision, Lexington Public Schools v. K.S., holding that pursuant to G.L. c. 119, § 39E, the Child Requiring Assistance (CRA) statute, non-attorney school personnel are authorized to file Juvenile Court petitions concerning students. The issue before the court was whether an assistant principal committed unauthorized practice of law when he filed, on behalf of a school district, a petition under the CRA asserting that a twelve-year-old child needed assistance because of his excessive and willful absences.
In April of 2021, a middle school assistant principal and attendance supervisor filed a CRA petition in the Juvenile Court after a twelve-year (12) old child failed to attend school for forty-eight (48) days that school year, and his family had not participated in a truancy prevention program. After the Juvenile Court judge accepted the petition, counsel for the child moved to dismiss the petition on the ground that the assistant principal, as a non-attorney, was engaging in the unauthorized practice of law. The Juvenile Court judge denied the motion to dismiss, reasoning that the Legislature has authorized school officials to file CRA petitions.
Generally, non-lawyers are prohibited from practicing law to protect the public welfare, and courts enjoy broad discretion in defining the practice of law. Nevertheless, courts have traditionally given substantial deference to the views of the legislature on issues of unauthorized practice of law. Under the express language of the CRA, “a school district may initiate an application in [the Juvenile Court] stating that [a] child is not excused from attendance in accordance with the lawful and reasonable regulations of such child’s school…” M.G.L. c. 119 § 39E. Similarly, c. 76 § 20 says “Supervisors of attendance… may apply for petitions under the provisions of section thirty-nine E of chapter one hundred and nineteen.” In Lexington Public Schools, the court found that, in passing these laws, the Legislature intended to allow non-lawyers to apply for CRA petitions and that the Juvenile Court should provide materials to help them during their appearance. Further, CRA proceedings are intended to be relatively informal because, in 2012, the Legislature replaced the children in need of services statute with the CRA with the express goal of making the proceedings “less adversarial.” Accordingly, the Court held that school personnel – as well as parents, custodians, and legal guardians – do not engage in the unauthorized practice of law when they file a CRA petition.
However, the Court declined to go any further than the issue presented and did not provide a precise definition of the practice of law, recognizing the difficulty in doing so. Instead, the court reaffirmed previous holdings that a determination whether an individual’s actions constitute “practicing law” is a fact-specific inquiry.
If you have any questions regarding the filing of CRA petitions, please contact us. We are pleased to assist school administrators in addressing truancy concerns and navigating the CRA petitions process.
This update is provided for informational purposes only and should not be considered legal advice.
Last year, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.” As of March 15, 2022, the Act has expired and employees are no longer eligible for leave under the Act.
The Act went into effect on May 28, 2021 and required employers to provide eligible employees with up to 40 hours of paid leave, capped at $850 per week, for certain absences in connection with COVID-19. This expense is reimbursable to the employer from the COVID-19 Emergency Paid Sick Leave Fund.
While the program was originally set to expire on April 1, 2022 or upon the exhaustion of $100 million in program funds, the law allowed the Office for Administration and Finance to end the program earlier upon exhaustion of funds.
Employers still have until April 29, 2022 to submit applications for benefits reimbursement.
While this state sick leave benefit has expired as of March 15, 2022, employees may have other leave entitlements under collective bargaining agreements or employer policies.
If you have any questions regarding the content of this update or any other questions regarding labor and employment law generally, please contact us.
Last year, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.” The Act requires all private and public employers within Massachusetts to offer employees leave time for COVID-19 related issues.
The program under the Act is scheduled to end on April 1, 2022, or earlier if the Commonwealth determines that the allocated budget is nearing exhaustion. If the program will be terminated before April 1st, the Commonwealth will provide fifteen (15) days’ notice to employers, and establish a run-out period to allow employers to finish their reimbursement submissions. Employers with unionized workforces should review all applicable agreements with unions as those agreements may provide benefits that go beyond April 1, 2022.
The Act operates as follows:
Qualifying Reasons for Leave
Employers are required to provide emergency paid sick leave to employees who are unable to work for one or more of the following reasons:
1. An employee’s need to:
a. self-isolate and care for themself because they have been diagnosed with COVID-19;
b. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
c. get or recover from a COVID-19 immunization;
2. An employee’s need to care for a family member who:
a. must self-isolate due to a COVID-19 diagnosis; or
b. needs medical diagnosis, care, or treatment for COVID-19 symptoms;
3. A quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;
4. An employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or
5. An employee’s inability to telework due to COVID-19 symptoms.
A “family member” under the Act is defined as an employee’s spouse/domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse, or a person who stood in loco parentis to the employee when such employee was a minor child.
Employers may not require employees to use other types of available paid leave in lieu of this emergency paid sick leave, and may not require an employee to search for or find a replacement worker to cover the time that the employee will miss while on leave provided by the Act.
Increment of Leave
1. For employees who work 40 or more hours per week, the employer must provide 40 hours of emergency paid sick leave.
2. For employees who regularly work less than 40 hours per week, employers must provide leave in the amount equal to the average number of hours that such employee works per week.
3. For employees with varying weekly hours employers must provide leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous 6 months.
4. For an employee who has not been employed for at least 6 months and has a schedule where weekly hours vary, the employer must provide leave equal to the number of hours per week that the employee reasonably expected to work when hired.
5. The maximum an employer is required to pay an employee per week and seek in reimbursement is $850.00, including costs of benefits.
Employee Requests for Leave
Employers who seek reimbursement from the Commonwealth must require their employees to submit requests for emergency paid sick leave in writing. The state created a form for employers to use in obtaining that information, which is available at: https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program. The form must contain the following information:
1. The employee’s name;
2. The date(s) for which leave is requested and taken;
3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
4. A statement that because of the COVID-19 related reason the employee is unable to work or telework.
For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include:
1. The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and
2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
All employee health information gathered is to be treated as confidential, subject to applicable state and federal law. No health information should be disclosed to any third parties without express permission from the employee.
Reimbursement Protocol
In anticipation of applying for reimbursement, the state has advised that employers should collect and retain the following information:
1. The employee’s social security or tax identification number;
2. The employer’s identification number associated with the position from which the employee took leave;
3. The length of the leave (in hours) and wages paid during that leave that are not eligible for federal tax credits, and are not otherwise paid under any other government program or law;
4. Benefits applicable to the employee taking leave; and
5. The number of hours in the employee’s regular schedule, or: (A) if the employee has no regular schedule, the hours that the employee was scheduled to work per week over the 6-month period immediately preceding the date on which such employee takes the emergency paid sick leave, including hours for which such employee took leave of any type; or (B) if the employee did not work over such 6-month period, the number of hours the employee reasonably expected to work at the time that the employee was hired or the average number of hours per week that the employee would normally be scheduled to work.
Retaliation Prohibition
Employers may not interfere with an employee’s ability to use the emergency paid leave under the Act or retaliate against an employee for exercising the rights described above. This includes considering the use of the emergency sick leave as a negative factor in any employment action or taking an adverse action against an employee because the employee supports the exercise right of another employee.
If you have any 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.
Under Department of Labor Relations/Commonwealth Employment Relations Board precedent a public employer has the nonbargainable prerogative to require employees to undergo fitness for duty examinations. Until recently, however, it was an open question whether the method and means by which these examinations are conducted is a mandatory subject of bargaining. On December 30, 2021, the Appeals Court resolved that question when it affirmed the decision of the CERB in City of Newton v. Commonwealth Employment Relations Board, holding that the employer was required to engage in bargaining over the criteria and procedures for fitness for duty examinations.
The facts giving rise to the dispute first arose in 2016, when the police chief ordered a captain to undergo physical and psychological “fitness for duty” examinations. The order followed a recent uptick in the number of personal days the employee had taken following deaths in his family and a personal injury not related to his work. In response to the chief’s directive the superior officers demanded that the city bargain over (1) the selection of the psychological examiner; (2) the information to be transmitted to the examiner; (3) the testing protocol to be used; and (4) what results were to be generated and to whom the results were to be communicated. When the city refused, the union filed a charge of prohibited practice and ultimately the DLR hearing officer and then the CERB found a violation, following which the city appealed.
The Appeals Court affirmed. Noting that “the decision to order a fitness for duty examination is within the city’s managerial prerogative and is not subject to mandatory bargaining”, it rejected the city’s several arguments regarding the manner in which the examination is conducted. First the city asserted that a bargaining requirement would “unduly impinge on its freedom to perform its public functions.” The court disagreed, ruling that the city’s interest in public safety is not undercut by the requirement that it engage in impact bargaining over the procedures and criteria for examinations. The court added that the city and union had previously engaged in successful negotiations over a drug and alcohol abuse policy, which included standards for initiating testing and testing administration. Next, the city argued that it was insulated from its duty to bargain based on the Civil Service Law, G.L. chapter 31. The court again disagreed, finding no conflict between the two laws and, therefore, that the city’s obligation to negotiate prevailed. Finally, the city argued that the union waived its right to bargain based on certain provisions in the parties’ contract, including the “management rights” clause. Again, the court rejected this argument as well because the agreement’s language failed to show a “clear and unmistakable waiver” of bargaining over the manner and means of determining fitness for duty examinations.
The court summarized by stating the “fact that mere completion of the examinations did not result in [the employee]’s reinstatement, and that he remained suspended until he had met whatever fitness criteria applied to the examinations, makes the point that the ‘methods and means’ of the decision were critical to the terms of [his] continued employment.” The court emphasized the “distinction between ordering an examination and the procedures for implementation, e.g., choosing an examiner, and the method and means by which the examination will be carried out”.
Public employers should keep in mind that while the decision to have an employee undergo a fitness for duty examination is the employers to make, how the examination will be implemented must be negotiated with the relevant union. Because in a given circumstance it may be difficult to clearly separate the two concepts, an employer that is uncertain about its obligations should consult with its counsel.
This update is provided for informational purposes only and should not be considered legal advice.
On Monday, December 27, 2021, the Centers for Disease Control and Prevention (“CDC”) shortened its recommended isolation time for individuals exposed to COVID-19. Guidelines now recommend that individuals who are unvaccinated or have not received the vaccine booster quarantine for five (5) days, followed by strict mask use for an additional five (5) days. Individuals who have received their vaccine booster do not need to quarantine following an exposure but should wear a fitted mask for the ten (10) days following the exposure. For all individuals who have been exposed, the CDC advises that best practice is to receive a test five (5) days after the initial exposure.
As part of its update, the CDC also reduced the quarantine period for individuals who have tested positive for COVID-19 but are asymptomatic from ten (10) days to five (5) days. If individuals remain asymptomatic following the five (5) day isolation period, they may leave quarantine if they continue to mask for five (5) days. Massachusetts has adopted CDC guidelines as follows:
This update is provided for informational purposes only and should not be considered legal advice.
On December 17, 2021, the Massachusetts Supreme Judicial Court issued its decision in Meehan v. Medical Information Technology, Inc., reversing the dismissal of the Superior Court. The issue before the court was whether an employer can terminate an at-will employee “simply for exercising the right to file a rebuttal to be included in his personnel file” as is permitted under the Massachusetts Personnel Records Act. Answering in the negative, the court held that such a termination would violate the public policy exception to at-will employment.
Meehan had worked as a sales representative for Medical Information Technology, Inc. (“Meditech”) since 2010. In 2017, Meditech transferred Meehan to a newly created sales specialist position. The new position had significantly different job responsibilities and differed in compensation structure. While employed in this position, Meehan was placed on a performance improvement plan. In response to his placement on the performance improvement plan, Meehan submitted a lengthy rebuttal statement. Members of Meditech’s management team met that same day to discuss Meehan’s rebuttal and decided to terminate him immediately.
Generally, an at-will employee may be terminated for any non-discriminatory reason or no reason at all. However, Massachusetts courts have recognized a narrow exception to this at-will rule where the discharge violates public policy. The public policy exception has been applied in circumstances where an employee was discharged for asserting a legally guaranteed right. A basis for finding such a right “can easily be found when the Legislature has expressed a policy position concerning the rights of employees and an employer discharges an at-will employee in violation of that established right, unless no common law rule is needed because the Legislature has provided a statutory remedy.” Here, the court found that the Personnel Records Act expressed a clear legislative position, protecting an employee’s right to submit a rebuttal statement. Specifically, M.G.L. c. 149, § 52C provides that “if there is a disagreement with any information contained in a personnel record . . . the employee may submit a written statement explaining the employee’s position which shall thereupon be contained [in the personnel record.]” The Court found that because the Act is silent on the issue of termination or retaliation for exercising the right itself, the common-law wrongful discharge action is the appropriate remedy. Thus, the Superior Court’s dismissal of the action was inappropriate.
In so holding, the Court expressly rejected the contention that recognizing the right of rebuttal would extend just cause protection to at-will employees. Indeed, rebuttal statements do not provide any additional protections to at-will employees; rather, they merely memorialize the employee’s position regarding an issue in dispute.
Moving forward, the holding in Meehan makes clear that an employer retains the right to terminate an employee for any non-discriminatory reason or no reason. However, an employer cannot terminate an at-will employee for exercising the employee’s right to file a rebuttal statement in the employee’s personnel file pursuant to M.G.L. chapter 149 §52C.
This update is provided for informational purposes only and should not be considered legal advice.
On Thursday, December 9, 2021 Nick will present at the MASBO Bi-Monthly Meeting in Milford. Nick will be discussing how to use collective bargaining to increase student achievement.
On Thursday, November 4, 2021 Liz and Nick presented at the MASC/MASS Annual Joint Conference in Hyannis. Liz and Nick discussed trends in collective bargaining and COVID related concerns including vaccine rollout, remote learning options in the future and ongoing expectations for families and staff.
This past June the Supreme Court issued a landmark decision regarding student speech rights in the digital age. In Mahanoy Area Sch. District v. B.L., No. 20-255 (2021), the Court applied the half-century-old decision in Tinker v. Des Moines Indep. Community Sch. District, 393 US 503 (1969), which governs student speech rights under the First Amendment, to student speech that occurs “off campus”/remotely by using modern electronic technology/social media. The Court held that schools have “less leeway” to regulate such speech than they do regarding speech that takes place in the school or during school programs. The Court therefore ruled that the school district had violated a student’s rights under Tinker when it suspended her for a post on Snapchat which took place at a remote location, did not target any specific students or school staff, and was limited to a vulgarity-laced rant about the school’s cheerleading program. In its opinion, however, the Mahanoy Court left “for future cases” the determination as to “where, when, and how … the speaker’s off-campus location will make the critical difference” and suggested several areas in which discipline for off-campus speech by students may still be appropriate under the First Amendment. These include speech that involves “serious or severe bullying or harassment targeting particular individuals”.
The United State Court of Appeals for the First Circuit has now issued the first federal appellate decision in the country applying Mahanoy to “off campus” speech. On November 19, 2021, the court decided Doe v. Hopkinton Public Schools, No. 20-1950 (1st Cir. 2021), a case in which attorney John Foskett of Valerio Dominello & Hillman LLC worked with the National Association of School Boards to file an amicus brief.
In Doe, several members of a Snapchat group and the school’s hockey team had demeaned another student in Snapchat posts and at team events, causing the student to refuse to try out for another sport, to withdraw from a chosen class, and ultimately to transfer from the school. Suspensions ensued based on violation of the Massachusetts Anti-Bullying law, G.L. c. 71, §37O. Two students who had only been involved in the “off campus” Snapchat posts filed suit claiming a violation of their speech rights under the First Amendment and under the Massachusetts Student Speech statute, G.L. c. 71, § 82. The district court rejected their claims and, in its decision on appeal, the Court of Appeals has affirmed the judgment and has upheld the discipline.
Applying Mahanoy’s interpretation of Tinker, the Doe court ruled that “schools have a special interest in regulating speech that involves ‘the invasion of the rights of others’” and that “[t]his pedagogical interest remains even in off-campus circumstances.” The court distinguished the “general statement of discontent” in Mahanoy, finding it “qualitatively different from bullying that targets and invades the rights of an individual student.” The court next rejected the students’ argument that their minimal role of merely posting on the Snapchat site immunized their conduct. Pointing out that bullying is often a group activity, the court held that the school “reasonably concluded” that the plaintiffs’ activity “emboldened the bullies and encouraged others in the invasion of [the target’s] rights”. It ruled that “speech that actively encourages … direct or face-to-face bullying conduct is not constitutionally protected” and that “[t]he test under Tinker is objective, focusing on the reasonableness of the school’s response, not the intent of the student.”
The plaintiffs also claimed that their speech was protected under G.L. c. 71, § 82 because that statute uses language suggesting that only speech that “disrupts” the school may be regulated, which is similar to language that was used in Tinker. The court disagreed. It pointed out that the Massachusetts statute was enacted well before adoption of the bullying statute in § 37O and that the latter contains additional language that also was used in Tinker, proscribing conduct that “‘infringes on the rights of the victim at school’”. The court refused to interpret § 82 in a way such that it would “conflict directly with” § 37O or that would render the bullying law “meaningless.”
Doe is significant because it is the first federal appellate decision in the country that addresses “off campus” speech by students in light of the Supreme Court’s Mahanoy ruling. Importantly, it confirms that at least some such “off campus” speech can be the basis for student discipline without violating the First Amendment. As suggested in Mahanoy, whether that speech in a given situation may be regulated will depend to a great extent on the specific facts – such as whether it sufficiently constitutes a “threat of harm”, “harassment”, or “infringes on the rights” of another student. Administrators should consult with school district counsel when these issues arise.
If you have any questions regarding the content of this update, please contact us.
This update is provided for informational purposes only and should not be considered legal advice.
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