On Tuesday, March 7, 2023 Ann Marie will present at the MMA webinar. Ann Marie will be on a panel discussing legal considerations for social media policies and practices for municipalities and their governing bodies.
The United States Court of Appeals for the First Circuit has twice held that a public employer does not violate the First Amendment of the United States Constitution when it authorizes a union to serve as the exclusive representative in collective bargaining for employees in a designated bargaining unit. Reisman v. Associated Facs. Of the Univ. of Me., 939 F.3d 409 (1st Cir. 2019); D’Agostino v. Baker, 812 F.3d 240 (1st Cir. 2016). Consistent with that precedent, on February 14, 2023, the First Circuit upheld a lower court’s decision dismissing a First Amendment claim brought by a professor at the University of Massachusetts at Dartmouth in Peltz-Steele v. UMASS Faculty Fed’n, Local 1895 Am. Fed’n of Teachers, AFL-CIO et. al, No. 22-1466.
The plaintiff is a professor at the UMass Dartmouth School of Law. He had declined to join the union that was certified to represent members of the UMass Dartmouth faculty . Following financial losses related to the COVID-19 pandemic, the university engaged in negotiations with the union regarding potential staffing and/or salary cuts. Ultimately, the parties reached an agreement in 2020 that implemented a progressive pay reduction in exchange for a promise that no bargaining unit employees would be terminated until July 1, 2021. That agreement, combined with a separate reduction in law school research funding, resulted in the plaintiff’s income being reduced by twelve percent.
The plaintiff then filed a lawsuit alleging that the union, the university president, the Massachusetts Attorney General, and the Commonwealth Employment Relations Board had violated his First Amendment rights by making the Union his exclusive representative in the negotiation process, despite his not being a member of the Union. He sought a declaratory judgment that the exclusive representation provided for in the collective bargaining law, G.L. chapter 150E, compels speech and association in violation of the First Amendment as well as an order enjoining the defendants from enforcing or giving effect to certain of its provisions. When a judge of the United States District Court for the District of Massachusetts granted defendants’ motion to dismiss, plaintiff appealed.
The First Circuit concluded that this case was controlled by two prior decisions of the court which had held that exclusive bargaining representation by a democratically selected union does not violate the right of free association that is held by employees represented by the bargaining unit who choose not to become union members. The court reasoned that the Massachusetts statute is similar to the Maine law at issue in one of its prior decisions because both authorize an exclusive bargaining representative to bargain only on behalf of the bargaining unit and not on behalf of an individual employee independent of the unit itself. Second, the Court rejected the plaintiff’s assertion that its prior decision failed to consider key aspects of the Supreme Court’s decision in Janus v. American Federation of State, County, & Municipal Employees, 138 S. Ct. 2448 (2018). That case held that the First Amendment prohibits a union’s mandatory assessment of agency fees on non-union members. The First Circuit noted that Janus did not involve, and therefore did not decide, a challenge to exclusive bargaining in the public sector.
The Peltz-Steele decision underscores the premise that public sector unions can negotiate on behalf of all the employees represented by the bargaining unit without offending the First Amendment rights of non-members. If you have any questions about the content of this update, please contact us. We are pleased to assist public sector employers in all matters related to collective bargaining.
This update is provided for informational purposes only and should not be considered legal advice.
Historically, courts have disapproved of decisions that broadly ban persons from entering on school property based on questionable public safety concerns. Keeping in line with this precedent, on January 24, 2023, a judge of the United States District Court for the District of Massachusetts granted the plaintiff’s motion for a preliminary injunction in Worthley v. School Committee of Gloucester et. al, No. 22-12060. The plaintiff sought an order barring enforcement of a no trespass order by the Gloucester Public Schools (“GPS”) which prohibited the plaintiff’s entry on Gloucester High School (“GHS”) grounds during school hours or at any school sponsored event or activity for the duration of the 2022 – 2023 school year.
The plaintiff, a member of the Gloucester City Council, was alleged to have sent inappropriate text messages to a female minor student about volunteer opportunities as well his sleeping habits and other personal interests. After learning of this exchange, the Superintendent of GPS issued a no trespass order stating that the plaintiff was “not to appear on or enter the premises of GHS during school hours or at any school sponsored event or activity from November 14, 2022 until the end of the 2022 – 2023 school year.” In response, the plaintiff filed a lawsuit under 42 U.S.C. § 1983, alleging violations of the First Amendment and Fourteenth Amendment of the United States Constitution and also under the Massachusetts Civil Rights Law, G.L. c. 12, § 11I. He also filed a motion for a preliminary injunction.
As required when evaluating a request for injunctive relief, the judge addressed whether the plaintiff had a likelihood of success on the merits of his claims. The judge concluded that the plaintiff had satisfied this requirement regarding his First Amendment free speech claim, applying the theory that the grounds of the high school are otherwise open to the public and are therefore considered a “limited public forum”. Although content-neutral, time, place, and manner restrictions are permissible for this type of forum, they are valid only if they are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of information.
While acknowledging the school district’s significant interest in protecting student safety, the court ruled that “fear of serious injury cannot alone justify suppression of free speech and assembly[;]… to justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.” Based on the facts, the court concluded that the categorical ban from all school-sponsored events or activities at the high school was overbroad. The court also found that it was not clear that the order left open “ample alternative channels for communication”, particularly where school-sponsored events at the high school are open to the public and generally attended by other city councilors.
The Worthley decision illustrates the limits of permissible action by school districts and other public officials that implicate First Amendment rights and the extent to which any restrictions on those rights will be measured by the rules that apply to the different types of forum involved. This is a complicated legal area and the outcome will depend on case-specific facts. Officials are wise to consult with counsel before issuing a no trespass order so that it can be appropriately fashioned.
If you have any questions about the content of this update, please contact us.
This update is provided for informational purposes only and should not be considered legal advice.
On January 20, 2023, a judge on the United States District Court for the District of Massachusetts noted that the rights of free speech and assembly, while fundamental in our democratic society, do not mean that everyone is entitled to address a group at any public place and at any time.
The judge denied the plaintiff’s motion for injunctive relief in Sousa v. Seekonk School Committee et. al, No. 22-40120 (2023). The plaintiff’s motion sought to enjoin enforcement of two portions of the Seekonk School Committee’s policy on public participation on the basis that they violated the First Amendment.
Sousa is a member of the public who repeatedly disrupted School Committee meetings. On January 5, 2022, Sousa stood outside the window of a closed executive session and banged on the window and yelled at School Committee members while recording the session. A committee member notified police and a temporary No Trespass Order was issued to Sousa. Despite the order, on January 24, 2022, Sousa attended a School Committee meeting and played the recording of the January 5th incident during Public Speak. Sousa continued to speak after his time ended and he was asked to leave the meeting. Sousa was removed from another School Committee meeting on September 26, 2022, when he yelled at the committee for limiting his and his wife’s speech to the allotted time pursuant to the School Committee’s policy. Following this disruption, the School Committee issued a permanent No Trespass Order against Sousa. Sousa sued the School Committee, arguing that the Committee’s policy of encouraging respectful speech and of limiting debate in Public Speak violates the First Amendment and that the No Trespass Order unlawfully restricted his free speech. Sousa sought preliminary injunctions to enjoin enforcement of the order and policy.
In assessing Sousa’s motion for preliminary injunction, the court applied a standard which requires Sousa to show that he is likely to succeed on the merits of his claim. The court concluded that Sousa is unlikely to successfully show that the School Committee policy violated the First Amendment, whether he challenges the policy on its face or as applied to him. School Committee meetings are limited public forums, meaning that the Committee may impose limits on speech that are reasonable and viewpoint neutral. This includes time, place and manner restrictions, such as limiting speakers to an allotted time. The court found that the portions of the policy Sousa challenged are not restrictions on free speech because they merely encourage speakers to be respectful and disclaim that Public Speak is not a time for debate or response. The court further concluded that the restrictions placed on Sousa when he was not a recognized speaker, including the requirement that he not interrupt the meeting, were constitutional.
The Sousa decision is an excellent reminder that restrictions on speech which are reasonable and viewpoint neutral are unlikely to run afoul of the First Amendment.
If you have any questions about the content of this update, please contact us.
This update is provided for informational purposes only and should not be considered legal advice.
On December 14, 2022, a judge in the United States District Court for the District of Massachusetts issued a decision in Foote, et al. v. Town of Ludlow, et al., No. 22-30041 (2022) which has garnered significant attention in the media. The court dismissed a lawsuit filed by two parents who claimed that the Ludlow Public Schools violated the parents’ fundamental rights to make decisions about the upbringing of their children when school staff offered guidance about gender identity to two students, complied with the students’ requests to use alternative names and pronouns, and did not share information about the students’ preferences with their parents. Because the dismissal assessed whether the complaint stated a claim such that the case could proceed, the court was required to accept as true the allegations in the complaint.
The facts pertinent to the claim are complex but can be summarized as alleging that the school withheld information from the parents of two students regarding the students’ decisions about gender identity, the students’ use of preferred names and pronouns at school, and staff’s counseling of the students. The students at the time were ages eleven and twelve and were enrolled in middle school.
Assessing the parents’ claim as one involving their Fourteenth Amendment right to substantive due process, the court applied a standard which determines whether the school district’s actions were “so extreme and egregious as to shock the contemporary conscience” and exhibited a “‘stunning’ level of arbitrariness that goes beyond ‘[m]ere violations of state law.’” The court concluded that the facts alleged by the parents failed to meet this demanding requirement and dismissed the lawsuit. The parents have filed a notice of appeal requesting review of the decision by the Court of Appeals for the First Circuit.
While the court ultimately decided that the parents had failed to state a claim, it made a number of observations regarding the district’s handling of an issue that is likely to arise with increasing frequency in Massachusetts schools. The court recognized the tension between the competing interests that may be involved in assessing students’ rights and parental rights. It acknowledged that “Massachusetts laws and regulations regarding gender identity … establish a significant government interest in providing students with a school environment in which they may safely express their gender identities, regardless of their ages or the preferences of their parents.” The court noted that this policy is reflected in the “non-binding guidance” of the Department of Elementary and Secondary Education (“DESE”), “Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment”. The court observed that this guidance “emphasizes the importance of creating a safe and supportive environment for students and encourages schools to work with students to develop plans for use of preferred names and pronouns” and that “‘in the case of a younger student,’ DESE advises schools to create a plan with input from parents”, but added that “DESE has not defined younger students, other than by describing them as ‘not yet able to advocate for themselves.’”
Ultimately the court stated that the school district’s actions were “based on a flawed interpretation of the DESE Guidance and ignored the plain language advising that parents be informed after the student is advised that such communication will occur.” The court suggested that “a policy that facilitates communication between students and parents would be consistent with the DESE Guidance and its recommendation to avoid surprising students when informing parents about the matter.”
This decision illustrates the difficulties that will be encountered by school districts in this area when balancing the rights of students in choosing gender identity and the rights of parents in being informed about and being involved in these sensitive matters. The court did not explicitly mention the fact that the non-binding DESE guidance does appear to give more weight to a student’s independent right to make these decisions if the student has attained age 14/enrollment in the ninth grade:
“A student who is 14 years of age or older, or who has entered the ninth grade, may consent to disclosure of information from his or her student record. If a student is under 14 and is not yet in the ninth grade, the student’s parent (alone) has the authority to decide on disclosures and other student record matters.”
This aspect of the DESE guidance is based on the definition of an “eligible student” in the student record regulations, 602 CMR 23.01(1) and (2), under which the age/grade threshold determines whether the parent alone retains the student’s rights regarding records or those rights are held by both the parent and the student.
While we await the eventual outcome of the parents’ appeal, the Foote decision is most useful as a graphic illustration of the highly complicated and evolving character of this area of the law. Although the court concluded that the facts did not meet the exacting standard of the claim that was filed, school districts can face legal exposure if they fail to carefully navigate and balance the competing interests that inevitably will require a case-by-case analysis. That care may warrant communication with district counsel.
If you have any questions about the content of this update, please contact us. We are pleased to assist public and private schools with policy development and implementation.
This update is provided for informational purposes only and should not be considered legal advice.
The Massachusetts Department of Family and Medical Leave (“Department”) recently published its 2023 workforce notifications. These notifications, required under the Paid Family and Medical Leave Act (“PFML”) include a poster, notices, and rate sheets that employers are to post or distribute. Massachusetts employers (excluding individual and public employers who have not adopted the PFML) are required to distribute the notices to employees and display the poster by December 2, 2022, which is 30 days before the new PFML rates take effect. Downloadable versions of the 2023 workplace poster, rate sheets, and notices are available on the Department’s website, here.
Massachusetts employers with a workforce eligible for PFML benefits must display the 2023 workplace poster, which explains PFML benefits, in a workplace location where it can be easily read. The poster must be available in English and each language which is the primary language of 5 or more individuals in an employer’s workforce if that language is one of the 12 translations available from the Department’s website. Employers should continue to display the 2022 poster until the end of the year, while also displaying the 2023 poster to notify employees of the upcoming rate changes. It also a best practice to distribute an electronic version of the poster so that employees may still access it in the event that they work remotely or otherwise do not enter the physical work location.
Additionally, employers must distribute the applicable 2023 PFML notice to all employees and covered contract workers. There are three versions of the notice: (1) for employers with 25 or more covered individuals; (2) for employers with fewer than 25 covered individuals; and (3) for employers to provide self-employed individuals working on a Form 1099-MISC. As with the poster, the notice must be in English and any other language that is the primary language of 5 or more individuals.
Finally, employers must distribute the new rate sheets, which include the 2023 contribution rates for PFML benefits. These rate sheets also vary by employer size. For employers with 25 or more covered individuals, the family leave contribution rate for 2023 is 0.11%, and the Medical Leave contribution is 0.52%, for a total of 0.63%. Employers may withhold from a covered employee’s wages the entire 0.11% contribution rate for family leave contribution and up to 0.208% for an employee’s medical leave contribution. Employers are responsible for directly paying the remaining 0.312% of medical leave contribution. For employers with fewer than 25 employees, the family leave contribution for 2023 is 0.11% and the medical leave contribution is 0.208% for a total of 0.318%. Employers with fewer than 25 covered individuals may also withhold 0.11% of eligible wages for the family leave contribution and 0.208% of eligible wages for the medical leave contribution.
If you have any questions about the content of this update, please contact us. We are pleased to assist employers with all matters related to PFML.
This update is provided for informational purposes only and should not be considered legal advice.
Starting November 8, 2022, Massachusetts schools must take additional steps to re-engage students before using suspension and expulsion as disciplinary measures. As part of An Act Addressing Barriers to Care for Mental Health, St. 2022, c. 177, § 29, the Massachusetts Legislature amended M.G.L. c. 71, §37H ¾(b) to include new language relevant to student discipline. Pursuant to those changes, before suspending or expelling students, schools must consider ways to re-engage the student and, in certain circumstances, implement alternative remedies.
Prior to the amendment, subsection (b) only required that the decision-maker “consider ways to re-engage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.” The amendment expands these requirements. As a result, before suspending or expelling a student, the decision-maker must employ alternative remedies in response to a specific incident and document their use and results. The alternative remedies required by the law include but are not limited to: (1) mediation; (2) conflict resolution; (3) restorative justice; and (4) collaborative problem solving.
The amendment provides for limited exceptions to these requirements where: (1) such remedies are unsuitable to the specific incident or are counter-productive; or (2) the student’s continued presence in school would pose a specific, documentable concern about the infliction of serious bodily injury or other serious harm upon another person while in school. School districts must document the facts which support either of these exceptions.
The school district must also implement school- or district-wide models to re-engage students in the learning process, such as positive behavioral interventions and support models or trauma sensitive learning models. However, these models may not be considered as a direct response to specific incidents.
Since this amendment will take effect on November 8th, school districts should develop processes of implementing alternative remedies to discipline, prepare ways to re-engage students in the learning process, and assess how to document the use and results of alternative remedies as well as circumstances where alternative remedies may not be employed. School districts should also notify all superintendents, principals, headmasters, and anyone likely to act as a decision-maker in a student discipline hearing of these changes in the law. It should be kept in mind that this amendment does not apply to discipline imposed under G.L. c. 71, §37H or under G.L. c. 71, §37H ½.
If you have any questions on the content of this update, please contact us. We are pleased to assist public and private schools in all matters related to student discipline, as well as provide strategies in documenting new requirements under this law.
This update is provided for informational purposes only and should not be considered legal advice.
On November 2, 2022, the Supreme Judicial Court will hear oral argument in Barron, et al. v. Southborough Board of Selectmen, et al., No. SJC-13284. The case is an appeal from a Superior Court decision that rejected a challenge to a local select board’s enforcement of its policy against speech during the public comment session of its open meetings that disrupts the meeting. The plaintiffs claim that the policy violates their speech rights under Article 16 of the Massachusetts Declaration of Rights.
VDH attorney John Foskett has filed an amicus brief on behalf of the Massachusetts Association of School Committees. The brief urges the court to affirm the lower court’s decision; to hold that the public comment sessions during school committee open meetings are a “limited public forum”; and to decide that under analogous cases addressing the right of speech in the First Amendment of the U.S. Constitution, the challenged policy is lawful. The brief argues that so long as a policy is reasonable and viewpoint neutral and is targeted at disruption, the policy may bar speech that involves ad hominem attacks, vituperation, shouting, interrupting other speakers, and similar conduct. The brief argues that this result is consistent with the Open Meeting Law, G.L. c. 30A, §20(g), which authorizes the chairs of local boards and committees to control disruption of open meetings by speakers.
A decision by the court can be expected by December or thereafter.
Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2022 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising Stars. Super 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.
The Massachusetts Department of Family and Medical Leave recently announced changes to the employer contribution rates and benefit amounts under the Paid Family Medical Leave Act (PFMLA). Effective January 1, 2023, the contribution rate for employers with 25 or more covered individuals will be reduced to 0.63% of covered employees’ eligible wages from the current rate of 0.68%. Employers with fewer than 25 covered individuals will have a contribution rate of 0.318% of eligible wages, a reduction from the current rate of 0.344%.
For employers with 25 or more covered individuals, the 0.63% contribution rate is apportioned between family leave and medical leave, with 0.52% to medical leave and 0.11% to family leave. Employers may withhold from a covered employee’s wages the entire 0.11% contribution rate for family leave contribution and up to 0.208% for an employee’s medical leave contribution. Employers are responsible for directly paying the remaining 0.312% of medical leave contribution.
Employers with fewer than 25 covered individuals may also withhold 0.11% of eligible wages for the family leave contribution and 0.208% of eligible wages for the medical leave contribution.
Although contribution rates will decrease from 2022 to 2023, the maximum weekly wage a covered employee can receive while on paid family medical leave will increase to $1,129.82 per week in 2023 from $1,084.31 per week in 2022.
If you have any questions about the content of this update, please contact us. We are pleased to assist employers with all matters related to paid family medical leave.
This update is provided for informational purposes only and should not be considered legal advice.
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