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Ban the Box, But Do Your Due Diligence: New Legislation Relating to Employment Applications Goes Into Effect January 1, 2017

Connecticut recently joined other states with its passage of “ban the box” legislation which expressly limits the types of questions that can be asked of applicants on initial employment applications.  Many states and municipalities across the country have adopted similar laws and policies in an effort to assist otherwise qualified prospective employees in their pursuit of productive careers.  This recent legislation concerning an employer’s ability to inquire about an applicant’s criminal record history is applicable to independent schools and comes at a time when independent schools are increasingly pressured to ensure student safety by properly vetting employment applicants. Continue Reading

CAS Legal Mailbag Question of the Week – 12/9/16

Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

Ever since the election, everyone seems out of sorts. Case in point, one of our teachers put up a sign in her classroom, and now a student and his father are demanding that we take it down or put theirs up! The sign is innocuous enough. It is about two feet wide and a foot tall, and it simply says “No one is an ‘Illegal’ here!” What’s not to love about that enlightened and caring sentiment?

When I got the complaint, I met with the father and son. The father accused the teacher and by extension the school district of brainwashing his son with a “leftist view that the laws don’t matter.” The son is a real chip off the old block, and he kept complaining disingenuously about how “confused” the sign has made him on the issue of illegal immigration and compliance with the law and school rules more generally.

I explained that it is a free country and teachers should be able to post a little sign every so often, but the father was all over me, complaining that he pays taxes and should have some say over the messages that our public schools send. In fact, he was so agitated that I was a bit concerned when he reached into a bag he had with him to pull something out. But it turned out to be just another sign about the same size as the teacher’s, stating “Be NICE to ICE! Obey the Immigration Laws or Else!”

Now I was really confused, and I asked him what I was supposed to do with that. With a tight grin, the father told me that fair is fair and that he would be suing the school district if we do not post his sign next to the teacher’s sign. I told him that I would think it over, and he finally left my office. I don’t have to post his nasty sign, do I?

Signed,
Enlightened Administrator Continue Reading

Last Chance to Register! Board Meets World: A Board Member’s Guide to Working With Stakeholders

Back view of a businesswoman asking a question on seminar.There’s still time to register for this complimentary seminar offered to board of education members.

School Law attorneys Richard A. Mills, Rebecca Rudnick Santiago and Benjamin P. FrazziniKendrick will provide board members with best practices and guidance regarding effective board operation with respect to internal governance, administration, school staff, students and the public (including parents and constituents).

Workshop topics will include:

  • Fostering positive and effective relationships with all stakeholders
  • Best practices for interacting with stakeholders
  • Board-Superintendent relations
  • Freedom of Information Act issues concerning meetings and records
  • Common pitfalls

Each participant is invited to bring a guest(s) to the workshop. When registering, please register your guest(s) as well.  Hors d’oeuvres and beverages will be served.

When: December 14, 2016 5:30 PM – 8:00 PM EST

Where:  Shipman & Goodwin Hartford Office, One Constitution Plaza, Hartford, CT  06103

register now
In case of inclement weather, the seminar will be rescheduled for December 20, 2016.

CAS Legal Mailbag Question of the Week – 12/2/16

Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

Last week, I met a lovely couple who stopped by my office to visit. They live just down the street from my school and they are homeschooling their two children who would otherwise be in grades 2 and 5. They explained that they don’t have anything against the public schools per se and that they are simply trying to provide their children a Christian education designed especially for them. They did confess to two concerns for their homeschooled children – the lack of opportunities for social interactions and for organized exercise – and they asked me if I would let their children participate in recess and gym class.

I was surprised by the request and I had no idea what to say. I told them that their request was a new one for me and that I would need to check. They politely thanked me, but as they were putting on their coats, they pointedly reminded me that they are taxpayers and would expect that their children would be welcome in these school activities.

I really don’t see a problem here, and I am all set to agree to let these children come to recess and gym class with the other students. They may even be a good influence on my students. Am I missing anything?

Signed,
Ready for Recess Continue Reading

Colleges and Universities Take Note: Employment Applications Must Comply With “Ban the Box” Legislation by January 1, 2017

Closeup of male hand pointing where to sign a contractIf you have not already done your “Ban the Box” revisions to your initial employment application paperwork there is still time, but do not delay!  Effective January 1, 2017 Connecticut prohibits employers from asking about a prospective employee’s prior arrests, criminal charges or convictions on an initial employment application unless: (1) the employer must do so under state or federal law, or (2) the prospective employee is applying for a position for which the employer must obtain a security or fidelity bond or the equivalent.  The failure to comply comes with a potential cost as violators can be fined $300 per violation by the Department of Labor.

After the initial hiring step, you can ask about criminal records, but must do so recognizing that the restrictions that existed before now apply at the next step in the hiring process.  That means that you may not require an employee or job applicant to disclose an arrest, criminal charge, or conviction, the records of which have been erased under certain conditions or where the employee has received a provisional pardon or certificate of rehabilitation. It also requires you to comply with certain requirements related to the confidentiality of a job application’s criminal history section.

Our advice – be sure your initial employment application will “ban the box” by January 1, 2017.  After that stage of your application process you can ask about criminal convictions, but you must still advise applicants they are not required to disclose an arrest, criminal charge, or conviction of which the records have been erased under certain conditions.

SEE YOU IN COURT! – December 2016

SeeYouInCourtImageThe last game for the Nutmeg Knights couldn’t come fast enough for veteran Nutmeg Board of Education member Bob Bombast.  A defensive tackle on the legendary 1984 team, Bob bleeds Nutmeg persimmon and gold and attends every game.  But those glory days are long over, and the long-suffering football team of Nutmeg Memorial High School was at the end of one of its worst seasons ever.

Attending last game of the season, Bob Bombast could not believe his eyes.  When the National Anthem was playing, Tom Teacher, one of the teachers who hired for crowd control, took a knee and bowed his head in silent protest of God knows what.  Bob saw red and vowed to see Tom punished for his disrespect.

At the next meeting of the Nutmeg Board of Education, Bob spoke out.  “I am outraged by what I saw at the last football game this year . . . ,” Bob began.

“We all were,” interrupted fellow Board member Mal Content.  “Another shellacking, this time 45-0 to finish the perfect season without scoring a single point.”

“No, no!” Bob shot back.  “I saw Tom Teacher taking a knee and disrespecting our team, our National Anthem and our country.  Mr. Superintendent, I want this teacher fired, understood?  Gonzo.  Finito.”

Mr. Superintendent groaned and replied, “Bob, we all share your concern, but this is a free country, and I don’t think that I can force a teacher to stand for the National Anthem.  But I will talk to him about being more respectful in the future”

Well, I suggest that you decide who gets fired here – this obnoxious teacher or you, for being such a wimp.”

Nancy Newshound, ace reporter for the Nutmeg Bugle, was in the audience writing down every word.  Smiling to herself, she knew that she could milk this controversy for several articles.  After the meeting, Nancy started interviewing people, beginning with Mr. Superintendent.  He clammed up as usual, saying that he did not comment on “personnel matters.”  Even Bob was reluctant to comment further, and he simply mumbled that he “would be letting the process work.

Tom Teacher, by contrast, was only too happy to wax poetic about injustice and his free speech right to protest during the playing of the National Anthem.  When Nancy asked him about Bob’s comments at the Board meeting, his face darkened, and he responded that “A fascist like Bob Bombast doesn’t belong on the Board of Education.”

Bob went ballistic the next morning when he read Tom’s statement in Nancy’s article in the Bugle.  First, he called Mr. Superintendent to demand Tom’s immediate termination.  Then, he called his personal attorney, Bill Alot, to have him sue Tom Teacher for $2,000,000 for defamation.

Can Tom Teacher be fired?  And what are the chances that Bob can successfully sue Tom Teacher for defamation for making that nasty remark?

*        *        * Continue Reading

A Broader View of Dispute Resolution

Middle-manThis article was published in the Fall 2016 issue of Dispute Resolution Magazine. Copyright © 2016, American Bar Association. Authored by Charles L. Howard.

In English common law, which forms the foundation for much of the US legal system, tradition and precedent are paramount. Because common law was built on the principles of lawyers, lawsuits, and the adversarial process, it’s no surprise that many people today assume that resolving a dispute means hiring an attorney and going to court. Even more modern approaches to resolving differences such as mediation, arbitration, and conciliation are seen through this traditional lens. They’re all alternatives to having your day in court.

But the concept of the “ombudsman,” a role that first appeared in Scandinavia about 300 years ago and has been implemented in the United States for only about half a century, springs from a very different idea. This broader view of dispute resolution comes from a separate tradition and premise: that organizations, including governments, should function effectively and that an independent, skilled agent within an organization can help make that happen. Resolving conflicts is part of that effective functioning, but it isn’t the only part. Understanding this view — and how the ombuds’ role has evolved to include ever more governmental functions and many other complex systems — helps us see why and how ombuds can provide crucial help both to individuals and organizations.

Read the full article here.

USCIS Releases A Revised Form I-9, Employment Eligibility Verification

Woman writing something sitting at her officeOn November 14, 2016, United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”).  Established by the Immigration Reform and Control Act (“IRCA”), Form I-9 is used to verify the identity and employment authorization of all individuals, including U.S. citizens, hired for employment in the United States. All U.S. employers, regardless of size, must ensure proper completion and retention of Form I-9 for each new employee hired after November 6, 1986.

Beginning on January 22, 2017, employers must only use the revised Form I-9 version dated November 14, 2016. USCIS has allowed a grace period through January 21, 2017 when employers may continue to use the Form I-9 version dated March 8, 2013.  Both the revised Form I-9 and the prior version may be found on USCIS’ websiteContinue Reading

Breaking News: Judge Stops New Overtime Rule

Just in time for the holiday season, employers have a reason to be thankful.  On November 22, 2016, a federal judge in Texas issued a nationwide preliminary injunction blocking the U.S. Department of Labor’s new overtime rule.

The overtime rule, issued earlier this year, would have raised the minimum salary level for the “white collar” exemption from overtime under the Fair Labor Standards Act (“FLSA”) from $455 per week to $913 per week.  That change was due to go into effect on December 1.  Notably, the Department of Labor’s rule did not modify the duties tests for the “white collar” exemption.

The judge’s decision came in a lawsuit, State of Nevada v. United States Department of Labor, filed by a number of states who sought to have the rule invalidated.  A second lawsuit, filed by the U.S. Chamber of Commerce and other business organizations, was consolidated with the first case, although the judge’s analysis focused on the state plaintiffs.

The crux of the judge’s decision was that the Department of Labor lacked the authority to issue the new rule.  The FLSA itself does not set any minimum salary level for the “white collar” exemption, and the existing level was created by regulation.  According to the judge, the salary level was permissible as long as it was merely a threshold element of the exemption analysis, with the statutory duties tests retaining their role as the central factors.  However, the Department of Labor’s new rule would have made the salary test, and not the duties tests, the primary factor in determining exempt status.  The judge concluded that this outcome is not permitted by the FLSA and that the Department of Labor exceeded its rulemaking authority.

While this ruling is welcome news for employers in general, the extent of its impact is unclear.  First, many employers will have already taken steps to comply with the new rule, such as modifying work assignments or increasing salaries.  The court’s ruling means that employers are legally able to reduce the salaries below the proposed salary level and maintain employees’ exempt status, but there may be practical and morale concerns with doing so.  Second, the court’s ruling is not a permanent injunction.  The lawsuit is ongoing, and the preliminary injunction may be lifted at any point in the future by the same judge or by an appeals court.  Third, the judge’s emphasis on the relative importance of the duties tests and salary test may simply encourage the Department of Labor to issue another rule with the same salary level but with more stringent duties tests, thus retaining the duties tests as the primary factor.  We will keep you updated on any developments.

In the meantime, employers who are still working on finalizing their responses to the proposed rule can take a breath, enjoy the reprieve, and celebrate Thanksgiving without stressing about the Department of Labor.

CAS Legal Mailbag Question of the Week – 11/23/16

Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

I am an avid fan of free legal advice, and I read your Legal Mailbag column whenever it appears. You answered a question last week about an FOIA request concerning the written evaluations of a coach. You glibly answered that exemption from disclosure for “records of teacher performance and evaluation” did not apply to the evaluation of the coach in question because he is not a teacher in that district. But you left me hanging by not addressing the more common situation when an irate parent asks to see the evaluations of a coach who also teaches in the district. In fact, I am suspicious that you didn’t answer that part of the question because you didn’t know.

As did the other writer, I recently told a parent demanding to see evaluations for a coach that the evaluations are “personnel records” exempt from disclosure, and this parent isn’t buying that excuse either. Do I have a better case for withholding the evaluation records because the coach in my case is indeed a teacher in the school district?

Signed,
Hungry for More Continue Reading

Register Now for Board Meets World: A Board Member’s Guide to Working With Stakeholders

This workshop will provide board of education members with best practices and guidance regarding effective board operation with respect to internal governance, administration, school staff, students and the public (including parents and constituents).

Workshop topics will include:

  • Fostering positive and effective relationships with all stakeholders
  • Best practices for interacting with stakeholders
  • Board-Superintendent relations
  • Freedom of Information Act issues concerning meetings and records
  • Common pitfalls

Each participant is invited to bring a guest(s) to the workshop. When registering, please register your guest(s) as well.

Hors d’oeuvres and beverages will be served.

In case of inclement weather, the seminar will be rescheduled for December 20, 2016.

This program will be held in separate sessions in our Hartford and Stamford Offices.  Please register for the location of your choosing.

HARTFORD SESSION:
When: December 14, 2016 5:30 PM – 8:00 PM EST
Where:  Shipman & Goodwin Hartford Office, One Constitution Plaza, Hartford, CT  06103
register now

STAMFORD SESSION:

When: December 14, 2016 5:30 PM – 8:30 PM EST
Where: Shipman & Goodwin Stamford Office, 300 Atlantic Street, Stamford, CT 06901
register now
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