Employment Law Letter – Spring 2017

Employment Law Letter is published quarterly as a service to clients and friends by the firm’s Labor and Employment practice.

Included in this issue are the following articles:

  • employmentlawwidgetEmployee vs. Contractor Is Still a Complex Question
  • When Are You Liable For Supervisory Misconduct?
  • No “Tip Credit” For Delivery Drivers
  • Who Qualifies For UC Is Sometimes a Tossup
  • Legal Briefs…and Footnotes

>> Download the Spring 2017 Employment Law Letter

SEE YOU IN COURT! – May 2017

SeeYouInCourtImageAs Chair of the Finance Committee of the Nutmeg Board of Education, new Board member Penny Pincher is deeply concerned about the budget next year.  Given the uncertainties regarding state funding, Seymour Dollars, venerable Chairperson of the Nutmeg Board of Finance, made good on his threats, and he and the other members of the Board of Finance have recommended a “no-increase” budget to the voters to approve at the upcoming referendum.  As a result, the Board of Education was forced to cut many items from its budget for next year, including new Chromebooks for Acorn Elementary School and new band uniforms.

By contrast, the Board has done well with its budget this year.  For the first time in recent memory, special education expenses have been below budget for a number of reasons, including that two children in expensive out-of-district placements moved out of town.  Indeed, the actual expenses for special education for the current year are predicted to be around $300,000 less than budgeted.  Consequently, Penny sees an opportunity to mitigate the damage she expects to the school system next year.

She sent Ms. Superintendent an email with her idea – buy the Chromebooks and band uniforms now!  By using the unspent funds now, she reasoned, the Board can achieve two of the goals it had when it submitted its original budget to the Board of Finance.  By return email, Ms. Superintendent told Penny that she thought Penny had a great idea and that she would promptly make arrangements with the Business Office to purchase the Chromebooks and the band uniforms this year.  Being politically astute, however, Ms. Superintendent included all the other Board members on the email, because she did not want any of the Board members to accuse her of not being transparent.

As one might expect, the other Board members were not all in support of Penny’s idea.  Red Cent, in particular, was incensed by what he saw as an end run on the Board’s opportunity to return unspent funds to the Town at the end of the year.  Red expressed his strong displeasure in a “Reply All” email, and he even copied Seymour Dollars on his response.  Of course, then Seymour got involved, and he threatened the Board members that such expenditures were unauthorized because they were not presented to the Town for its approval last year for this year’s budget. Continue Reading

CAS Legal Mailbag Question of the Week – 5/1/17

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

Dear Legal Mailbag:

I was just appointed principal of my school last fall. Despite my charming personality, I find that I am not the most popular person in my building. That honor falls to the head custodian, who has been here for the last twenty years. He really knows how to schmooze the parents, and he is always doing some favor or another for the teachers. Unfortunately, the rigor of his cleaning does not match up to his celebrity, and I have found it necessary to remind him to do a better job. My reminders seemed to be ineffective, and, as the end of the year approached, I decided to give him a written evaluation, something that he has not received for years, if ever.

Needless to say, I included some pointed comments in his evaluation about the quality of his work, and I even told him that he would do better to focus more on keeping the building clean than on being a pal to students, parents and staff. He didn’t take it well – at all. He started moping around, and some parents and some teachers picked up on it and, apparently, asked him what the matter was. I don’t know exactly what he said, but several teachers have now come to me unsolicited to tell me what a good job he does. To make matters worse, the president of the PTO (an officious father who is hard to take) stopped by to say that he heard from a “reliable source” that I have it out for the head custodian. I responded that I am not at liberty to talk about personnel matters, but he persisted by making an FOI request for “any and all evaluative documents” that I have written about the head custodian.

I have always heard that evaluations are confidential, and I would like very much to hear Legal Mailbag tell me that I can deny this request and keep the evaluation private between the head custodian and me. Would you do me that favor?

Seeking Assurance Continue Reading

Fourth Circuit Reverses Preliminary Injunction in Transgender Student Rights Case; Adds its Two Cents

Bathroom signIn March of 2017, the Supreme Court of the United States remanded the high profile transgender student rights case, Gloucester County School Board v. G.G. ex rel. Grimm, no 16-273, to the Fourth Circuit Court of Appeals for further consideration in light of the new administration’s withdrawal of two pieces of federal guidance on transgender student rights and related school obligations. Not surprisingly, on April 7th, the Fourth Circuit Court of Appeals vacated the original preliminary injunction, which permitted plaintiff Gavin Grimm to use his bathroom of choice; the Fourth Circuit’s decision was likewise based on the withdrawal of the agency guidance.

This reversal in effect bars Gavin Grimm from using the boys’ restroom at his school.  In fact, Mr. Grimm is currently a high school senior, and this recent change ensures that he will not be allowed to use the restroom corresponding to his gender identity for the pendency of his high school career.

The course change and resulting Fourth Circuit reversal may be disappointing for Mr. Grimm and his allies; however, two Fourth Circuit judges appended a concurring opinion to the brief order vacating the injunction which had allowed Mr. Grimm to use the boys’ restroom.  The concurring opinion, authored by Senior Judge Andre M. Davis and joined by Judge Henry F. Floyd, goes beyond a mere treatment of clean-cut legal issues and offers observations of Mr. Grimm’s perseverance, aligning him with other high-profile civil rights pioneers, such as Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell.

As noted by Judge Davis, “[t]oday, [Gavin Grimm] adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, ‘the arc of the moral universe is long, but it bends toward justice.’  [Gavin Grimm’s] journey is delayed but not finished.”  The concurrence further notes that the case was “about much more than bathrooms,” stating that it “has shown … the inequities that arise when the government organizes society by outdated constructs like biological sex and gender.”  Judge Davis closed the concurrence by quoting the poem Famous by Naomi Shihab Nye, opining that Mr. Grimm is appropriately famous because “[d]espite his youth and the formidable power of those arrayed against him at every stage of these proceedings, ‘[he] never forgot what [he] could do.’”

Although this concurrence does not alter the effect of the related order, it is possible that it portends future legal development and evolution in the area of transgender legal rights.  For now, public schools in Connecticut are reminded to remain cognizant of existing state law identifying gender identity or expression as a protected class and to follow the withdrawn federal guidance, as urged by Governor Dannel Malloy.

Two Notable Immigration Developments

immigration lawEmployers Should Review USCIS Fillable Forms I-9 Completed Based on Download From USCIS Website Between November 14 and November 17, 2016 for Social Security Number Glitch

Any employer who used the revised fillable Form I-9, Employment Eligibility Verification, downloaded from the USCIS website between November 14 and November 17, 2016 should review those forms to ensure that their employees’ Social Security numbers appear correctly in Section 1. USCIS announced on April 17th that there was a temporary “glitch” when the revised fillable Form I-9 was first published on November 14, 2016. Numbers entered in the Social Security number field were transposed when employees completed and printed Section 1 using a computer.

For a full discussion about where the transposed numbers will appear on the form as well as how the USCIS wishes employers to remedy it, please:

>> Read More

United States District Court Judge Blocks Trump Administration From Withholding Federal Funds From Sanctuary Cities

On April 25, 2017, United States District Court Judge William Orrick imposed a temporary injunction on any attempts by the Trump administration to enforce portions of an executive order that called for the withholding of federal funds from sanctuary cities.

The executive order, which President Trump signed in January, directed the Attorney General to withhold funds from any state that the Secretary of the Department of Homeland Security designated as a “sanctuary jurisdiction” and to take “appropriate enforcement action” against any jurisdiction with had “statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

>> Read More

Webinar: Classifying Your Workforce – Exempt vs. Non-Exempt Employees

Businesswoman examining documents at deskJoin Shipman & Goodwin labor and employment attorneys Henry Zaccardi and Ashley Marshall for a complimentary webinar where they will discuss wage and hour classification of exempt versus non-exempt employees in the big three categories: executive, administrative and professional.  Presenters will provide an overview of the legal implications of employee classification, such as potential penalties and audits, and recent developments in federal overtime rules.

When: May 17, 2017  12:00 PM – 1:00 PM EDT
Where:  Webinar

Leander Dolphin Recognized With “100 Women of Color” Award

Dolphin_L_WebLeander Dolphin was among those honored at the “100 Women of Color Awards 2017” gala, which celebrated the contributions of women in business, education, entrepreneurship, entertainment, government and service. The awards were presented by June Archer & Eleven28 Entertainment in recognition of the impact the recipients have had on the lives of people in their communities.

Ms. Dolphin is a partner in Shipman & Goodwin’s School Law practice group and Co-Chair of the firm’s Committee on Diversity and Inclusion. She represents public school districts, independent schools, colleges and universities in education and employment matters. Ms. Dolphin is a frequently requested speaker and author as well as an Adjunct Professor of Education Law at Quinnipiac University School of Law. For her commitment to justice and the advancement of the legal profession, she was selected as a Fellow of the American Bar Foundation, a James W. Cooper Fellow of the Connecticut Bar Foundation and she was chosen by the Connecticut Law Tribune as a “New Leader in the Law.”

In addition to her practice, Ms. Dolphin is a member of The Governor’s Prevention Partnership Board of Directors; has served both as Secretary and as a member the Board of Directors of the George W. Crawford Black Bar Association; and is on the Board of Trustees for The Ethel Walker School. Previously, Ms. Dolphin was Vice President, Human Resources and General Counsel at the Girl Scouts of Connecticut.

Union Invades the Dorm, Student Resident Advisors to Vote at GWU

Student demonstrationImagine having parents dropping a child off at your college and finding that there is a picket line up with the resident advisors (RAs) indicating that they are on strike against the college.  Sound unreal?  Actually it may be what college administrators, parents and students find at George Washington University next fall as the Regional Director of the National Labor Relations Board (NLRB) has just ordered that an election be held.  The election will determine whether the student resident advisors want to be represented by the Service Employees International Union (SEIU).  The SEIU had filed a petition with the NLRB to represent the RAs.  After a hearing to determine whether the RAs were “employees” under labor law, the Regional Director has said they are.  The Regional Director notes that they are paid a stipend and given free room.  They are given a job description and their performance is supervised in accordance with school policy.  In short, the RAs are paid to perform services for the University while being subject to the University’s control in what they do.  The University argued that the students choose to be RAs in order to have informal peer-to-peer mentoring relationships and to serve as role models, roles that are unlike any other on campus.  The University also argued that public policy should bar organizing, as the relationship was primarily educational and deeply rooted in the relationship between the RAs and the students.

The NLRB has ordered an election, which interestingly will occur about the time almost a third of the RAs will graduate.  If the outcome of the election is determined by the seniors who have been RAs, they will certainly leave a lasting legacy.

No Environmental Issues Left Behind

House improvement equipments and blueprints on blackboardWith many projects planned for existing and new buildings during the upcoming summer months while students are away, appropriate advanced planning for environmental issues can be a critical time and money saver (and reduce risks) for your district.  In addition, with the escalation of recent headlines reporting state public schools temporarily closing for asbestos abatement or permanently closing due to the discovery of PCBs, we invite you to join Shipman & Goodwin’s environmental and construction attorneys on May 3rd for No Environmental Issue Left Behind: Challenges for Public Schools – Compliance Requirements, Construction Projects and Crisis Management, where panelists will present a robust discussion about  the environmental, health and safety issues faced by public schools.  Please click here for more information and to register.

High School Sleuths Expose Questionable Credentials of New Principal

Portrait of confident professor with university students in classroomEarlier this month in the city of Pittsburg, Kansas, a group of curious student journalists raised serious questions about the credentials of their newly hired principal, Amy Robertson.  According to the Kansas City Star, Robertson had received 100 percent support from the district school board, but some of the students at the Pittsburg high school were not equally convinced.  The student journalists decided to look into the legitimacy of Robertson’s qualifications.  As the students investigated Robertson’s educational credentials, what they discovered was quite suspicious and raised red flags about the new principal’s background.

First, the students learned that her university degree came from Corllins University, which operated as a diploma factory of sorts where enrollees could buy the degree of their choice.  Later, the Kansas City Star reached out to the U.S. Department of Education and learned that the federal agency had no evidence of Corllins’ operation or closure.  Subsequently, the student journalists learned that Robertson had served as Principal at the American Scientific School in Dubai, a school receiving multiple ratings of “unsatisfactory” by Dubai’s education authority, which ultimately closed down in 2013.   Armed with revealing information about Robertson’s education and career, the student journalists wrote a news story in their school paper. Days after the release of that story, Robertson resigned.

What lesson can schools take from these Pittsburg students? When considering applicants, especially for positions that require extensive scholarship and experience, schools must do more than check off credentials.  An extra search into an applicant’s background can save a school from an embarrassing situation such as that faced in Pittsburg, Kansas.  Continue Reading