On January 20, 2012, the Acting General Counsel, Lafe Solomon, of the National Labor Relations Board (Board) issued a memorandum recommending the Board revise its policy for deferring unfair labor practice charges to arbitration. Presently, the Board will defer a charge to the parties collectively bargained arbitration process for resolution. 
Under the suggested policy, the Board will not permit deferral of Section 8(a)(1) and 8(a)(3) charges unless the arbitration process can be completed in a year. If it cannot be completed in a year, Acting General Counsel expects the Region to conduct a full investigation of the charge and if found to be meritorious, the case should be sent to the Division of Advice for further action. The change in the deferral policy will not effect of the Board’s approach to Section 8(a)(5) allegations involving breach of contract.
The stated rationale for the Acting General Counsel’s position is his concern that undue delay in the arbitration process caused by deferral renders any potential Board remedy meaningless given the passage of time.
Bottom Line for Employers
This memorandum by the Acting General Counsel continues his trend to revisit long-settled legal principles of the National Labor Relations Board and revise them where he deems it appropriate.
While this week marks the unofficial start of spring training for Major League Baseball, last week marked the official opening for the 2012 State of Connecticut legislative session. At the top of Governor Dannel P. Malloy’s legislative agenda is education reform. However, as part of his State of the State address to the General Assembly, Governor Malloy surprised union leaders with his call to revamp the teacher tenure process. he Governor described the current teacher tenure system by saying “all you have to do is show up for four years.”
Sharon Palmer, President of the American Federation of Teachers Connecticut, was quoted as saying she thought Malloy’s characterization “was a bit harsh and incorrect, but I think we can work our way through it.” 
Presently, for teachers to attain tenure, they need to complete forty school months of full-time continuous employment for the same board of education, provided the superintendent offers the teacher a contact to return for the following school year. (C.G.S.A. § 10-151). Once the teacher is tenured, they are entitled to a property right in their position for due process purposes and thus, it makes it extremely difficult for a board of education to dismiss a tenured teacher. Under the Teacher Tenure Act, a tenured teacher can only be terminated for the following reasons:
- Incompetence;
- Insubordination against reasonable rules of the board of education;
- Moral misconduct;
- Disability;
- Elimination of the position to which teacher was appointed; or
- Other sufficient cause.
Tenured teachers are not at-will employees because of an affirmative decision of the legislature in enacting the Teacher Tenure Act to protect classroom teachers and administrators below the rank of superintendent from the threat of arbitrary discharge. Cimochawski v. Hartford Public Schools (2002), 802 A.2d 800, 261 Conn. 287. By invoking these protections, the Connecticut legislature has made it extremely difficult to terminate an underperforming teacher. Not only is the standard of “incompetence” a burdensome standard to meet, the termination process is expensive and time-consuming, as teachers are entitled to notice, a hearing before the board of education and appeal rights to the Connecticut Superior Court.
Under Malloy’s proposal, “tenure will have to be earned and re-earned” by meeting certain objective performance standards which would include student achievement, school performance and parent and peer reviews. Malloy would like to see the law changed so that a teacher could be dismissed for “ineffective” performance rather than for “incompetence.”
The Governor should be commended for proposing such reforms to the Teacher Tenure Act especially since one of his primary constituent supporters has been labor unions. However, given the current configuration of both chambers of the Connecticut General Assembly, is it realistic to believe that real reform to teacher tenure can be enacted? Certainly, there will be much hesitancy from the Connecticut teacher unions to reform the current system. It will be interesting to see if the Governor’s opening day surprise can garner enough bipartisan support to achieve meaningful reform.
Bottom Line for Educators
If Governor Malloy is successful in enacting legislation to reform the teacher tenure act by lessening the standards for teacher dismissals and limiting teacher’s due process rights, such change would be welcomed by all boards of education.
By news release last week, the NLRB’s Acting General Counsel announced the publication of his second report on social media cases reviewed by the General Counsel’s office. The use of social media by employees and related action by employers became a hot topic for the NLRB in 2011, and continues into 2012.
The report, available on the NLRB website here, summarizes fourteen recent NLRB cases which “present emerging issues in the context of social media.” It follows an initial memorandum released by the Acting General Counsel on August 18, 2011. As the NLRB’s press release summarizes, half of the cases involve questions about social media policies created by employers, finding five of them unlawfully broad, one lawful, and one lawful following revision. The remaining seven cases involved questions of the lawfulness of employee discipline following the posting of comments on Facebook.
The release highlights two important, albeit general, conclusions to be drawn from these cases:
- Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
- An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
Bottom Line for Employers
The NLRB’s enforcement of the NLRA as it pertains to employee use of social media and employer enforcement of social media policies is still evolving, and as demonstrated by the cases in the Acting General Counsel’s report, often subject to fact-specific determinations. For now, there is not yet a clear set of rules for employers to follow in this area of law in order to avoid NLRB sanction. As such, it is important that employers contact legal counsel when contemplating discipline arising from employee use of social media. Further, employers should work with counsel to craft social media policies before such circumstances arise in order to avoid becoming an NLRB guinea pig.
It is now past the January 1, 2012 deadline for all Connecticut boards of education to approve their individual districts’ Safe School Climate Plans, the comprehensive procedures to address school bullying that were imposed by last year’s legislative session. The major focus of Public Act No. 11-232, An Act Concerning the Strengthening of School Bullying Laws, was to require each district to implement a Safe School Climate Plan in lieu of their formerly required bullying policies. The act defines “school climate” as “the quality and character of school life with a particular focus on the quality of the relationships within the school community between and among students and adults.”
While the act provided that the State Department of Education would adopt a model Safe School Climate Plan to assist districts in devising their own such plans, this has yet to happen.
The following is a review of the key components of the amended bullying laws, including additional requirements for the Safe School Climate Plans that must be in place by July 1, 2012:
- Definition of “Bullying.” The key is repeated conduct, shown by: (A) either the repeated use by one or more students of a communication that is directed at, or refers to, another student, or (B) an act or gesture by one or more students repeatedly directed at another student that (i) causes harm or damage to property, (ii) places the student in reasonable fear of such harm or damage, (iii), creates a hostile environment at school, (iv) infringes on the student’s rights at school, or (v) substantially disrupts the education process or orderly operation of the school.
- Complaint Investigation Procedures. Any student, parent or guardian may make a written report of bullying to any school employee (defined by the Act; see below). Once received, the Safe School Climate Specialist must supervise the investigation of the report, to be completed promptly. Within 48 hours of completion, if a verified act of bullying is found, the school must invite the parents or guardians of the student who committed the act to meet with the parents or guardians of the victim, at which the school will inform them of the measures being taken to ensure the victim’s safety and to prevent further bullying. The school must document and maintain records of each such investigation report, along with a list of the number of verified acts of bullying, which shall constitute a public record. The district shall protect from retaliation any person who makes or investigates a bullying report.
Updates to Safe School Climate Plans (Due July 1, 2012)
- Safe School Climate Coordinator. This person should be identified in your Safe School Climate Plan as a district-wide administrator with responsibility for overseeing the Safe School Climate Specialist at each individual school.
- Safe School Climate Specialist. This person must be the school principal (or designee) at each school in the district, and is responsible for supervising the processing of bullying complaints
- Safe School Climate Committee. This committee is established by the Safe School Climate Specialist at each school, and must include at least one parent/guardian of a student enrolled in the school. The committee must receive copies of completed investigation reports, identify and address patterns of bullying, review and amend relevant school policies, make recommendations concerning the Safe School Climate Plan, provide education on bullying, and assist with data collection pertaining to bullying incidents. The act includes an exception prohibiting the parent/guardian member of this committee from taking part in any activity that may compromise student confidentiality.
- New Responsibilities for School Employees. Any person who has regular contact with public school students in the performance of his or her employment duties (broadly defined to include substitute teachers and contracted service providers), and who witnesses bullying or receives a report of bullying, must orally notify the Safe School Climate Specialist within 1 school day, with a written report within 2 school days. Any such person making a good faith report of bullying shall be indemnified by the board of education for any action arising from the making of such report. School employees must also attend annual training on bullying prevention strategies, including related topics such as Internet safety and youth suicide prevention.
- Criminal Conduct. The Safe School Climate Specialist must notify law enforcement of any bullying incidents that he or she believes may constitute “criminal conduct.”
- Cyberbullying. The law defines cyberbullying as “any act of bullying through the use of the Internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices or any electronic communications.” A mobile device, as defined by the statute, is broad enough to include video gaming devices and cameras. It’s a smart idea to have a detailed cyberbullying policy that complements your student discipline policies, as well as those policies pertaining to acceptable electronic network and equipment use by both students and staff.
Bottom Line for Educators
The deadline for amending the Safe School Climate Plans to incorporate the new bullying requirements is fast approaching. Please contact Siegel O'Connor's Education Law attorneys for specific guidance on the new school bullying laws and related issues.
--Melanie E. Dunn is an associate in the Hartford office of Siegel, O’Connor, O’Donnell & Beck, P.C., where she represents boards of education with an emphasis on special education and other legal issues pertaining to students.
Lost amongst the fervor of the President’s recess appointments to the National Labor Relations Board (NLRB) was the prior announcement by the NLRB of its postponement of the effective date of its controversial new notice-posting rule from January 31 to April 30, 2012.
The rule, first proposed by the NLRB on December 22, 2010, and made final on August 30, 2011, requires most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). The required notice may be accomplished by posting an 11 by 17 inch poster similar to other federal workplace posters containing notices of rights, rules and policies. The poster must advise employees of their rights to organize and bargain collectively with their employers, among other NLRA guarantees.
When the rule became final, the effective date of the notice-posting requirement was November 14, 2011, but was subsequently postponed to January 31, 2012. At the time of postponement, the NLRB stated that it had postponed the effective date “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” It is likely, however, that the NLRB was motivated to postpone by the filing of several lawsuits by business and trade organizations seeking to block the rule by challenging its legality. In announcing its most recent postponement of the rule’s effective date on December 23, 2011, the NLRB expressly stated that it was doing so “at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”
Bottom Line for Employers
The new notice-posting rule puts significant, new and unprecedented burdens on employers which can only lead to contentious relationships between managers and employees and disrupt otherwise harmonious workplaces. Given that the new rule has already been postponed twice, employers should wait to comply until April 30, 2012, or whenever the litigation over the rule’s lawfulness is resolved, assuming of course, it is declared lawful at all.
Posted by
Glenn Duhl on Thu, Jan 12, 2012 @ 10:36 AM
Employers often consider the many claims asserted by employees to be a joke.
Management is often bewildered by an employee failing to abide by the simple rules of coming to work, arriving on-time, and behaving within the stated expectations contained in the employee manual. Why can’t employees be responsible for their own actions rather than faulting others for their shortcomings? And, worse, when the business enforces appropriate rules, what is the meaning of the employee’s claim that the discipline or termination was an act of illegal discrimination?
While many were out holiday shopping, on December 20, the Second Circuit Court of Appeals further refined the 90-day deadline for filing a civil action after the EEOC mails a right to sue letter.
In Tiberio v. Allergy Asthma Immunology of Rochester, the Second Circuit faced the issue of when the former employee received her right to sue letter. Tiberio was employed as a nurse and fired after accusations that she had unlawfully accessed medical charts of other employees and falsely ordered prescriptions. Tiberio filed a discrimination claim.
After the EEOC concludes its investigation of a charge of discrimination, the right to sue letter is dated and mailed. In this case, the EEOC mailed a right to sue letter with copies to the employer and Tiberio’s counsel. The mailing of the letter is not the important date; rather, the 90 days start ticking from the date when the complaining employee receives it. The “right to sue letter” has long been a problem. While some agencies track their correspondence with certified mail or email, the EEOC does not, leaving the parties and the courts to speculate as to when the employee-claimant received the all-important letter.
Such guess-work has caused the courts to create two presumptions:
- A right to sue letter is mailed on the date of the letter; and
- A mailed letter is received three days after its mailing.
As I sit writing this blog, I see a right to sue letter on my desk dated May 12, 2011. It was stamped “received” in the EEOC’s Boston office on June 1, 2011, and “received” by my client June 10, 2011. Clearly, the letter was not mailed on the date it says it was mailed and it certainly cannot be said to have been delivered within three days after the presumed mailing.
Bottom Line for Employers
So what happened with Tiberio? She filed a complaint with the District Court 96 days after the right to sue letter was issued. In an effort to circumvent this blown deadline, she claimed that she should have 90 days from the later date when her attorney received a copy of the letter. That suggestion did not sit well with the court. The Second Circuit has now held that the 90 day period begins to run on the date when the letter is first received either by the claimant or counsel, whichever is earlier. For the employer, he who laughs last, laughs best.
—Glenn Duhl represents management in employment law and litigation including breach of contract, wrongful termination, discrimination, defamation, emotional distress, wage and hour, sexual harassment, restrictive covenants and trade secret misappropriation matters.
As the New Year dawns, administrators in Connecticut school systems should be aware of a few items from last year’s legislative session.
1. Public Act 11–232, concerning bullying policies, requires that, by January 1, 2012, each Board of Education develop an approved “safe school climate plan.” Among other things, this plan should include the appointment of a school principal or other designee to investigate and address bullying incidents that occur both in and out of school. In addition, each district must establish an annual training program for all school employees dealing with the identification, intervention, and prevention of bullying and youth suicide among students.
2. Public Act 11–248, concerning carbon monoxide detectors, provides both obligations and protections for Connecticut school districts. The obligations are straightforward: Each school building is to be equipped with carbon monoxide detectors. The protection that the installation of carbon monoxide detectors provides, in addition to the obvious, is that the school board employees and agents are held harmless from any damages resulting from failure to detect carbon monoxide in a public school building if: A) The employees and/or agents were acting without malice and in good faith within the scope of their employment or official duties; and B) The appropriate detection equipment was installed and maintained in accordance with manufacturer’s instructions and regulations to be adopted pursuant to the Act. 
3. Finally, Public Act 11–136 has modified the teacher tenure statute to provide that nonrenewal of public school teachers may be accomplished by notifying affected teachers by May 1, as opposed to the old April 1 notification date. While this modification allows boards of education with an additional month to notify nontenured teachers of the nonrenewal of their contracts of employment, school boards and administrators should be aware that there may be other individual contractual obligations that still require notification by April 1.
With regard to the modification of the teacher tenure statue, most school systems provide an individual contract, usually titled "Initial Contract", for teachers newly hired into the system. These Initial Contracts often contain language regarding nonrenewal that includes the April 1 date for notification. While the amended statute now allows a May 1 notification, the Initial Contract would override the statutory notification date and could spark a breach of contract action by a teacher notified of nonrenewal between April 1 and May 1. This dilemma requires two things of prudent boards of education:
- First, check any nonrenewals that are scheduled for this spring to be sure that the teacher’s individual file does not include an Initial Contract with an April 1 nonrenewal date. If such a contract is found, be sure to meet the April 1 notification date.
- Second, review your standard contracts and, if you have not already done so, either eliminate the notification date entirely, since it is covered by statute, or at least modify your contract to include the new May 1 date.
Bottom Line for Administrators
These three items should get your New Year moving in the right direction! If you have any questions regarding these or other matters of education or labor law, please feel free to consult the attorneys of our firm.
In a shocking political powerplay, Present Obama made three recess appointments to the National Labor Relations Board: Sharon Block, Terence Flynn, and Richard Griffin. Block and Flynn are Democrats, while Griffin is a Republican.
While Obama's appointments ensure the NLRB will not be powerless for the next 12 months, questions have already begun to swirl as to whether the President's actions are constitutional. Specifically, Article One, section Five of the Constitution states:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days...
As The Washington Examiner has pointed out, this clause "presents a problem for President Obama, who claims to have just made a recess appointment when the Senate is not actually in recess. The Constitution says the Senate cannot recess for more than three days without the House's permission. The House has not granted permission, and as a result both houses have been holding pro forma sessions out of constitutional necessity."
Regardless of whether the President's actions are ultimately constitutional, they ensure that the Board will remain both active and Labor-friendly throughout 2012.
Bottom Line for Employers
Today's NLRB appointments look to be cut from the same partisan cloth as Obama's previous appointments. Look for the Labor-friendly approach of the 2011 Board to continue through the end of the year.
On Wednesday, November 30, the Board adopted a resolution incorporating some of its prior proposals for “quickie” or "snap" elections. While the Board did not adopt its previously proposed rule, it did vote to accelerate the voting process for union elections.
As presently constituted, the Board has only three members, two of whom are union attorneys appointed by President Obama. And of these two union attorneys, one was a recess appointment whose term expires at the end of 2011. Therefore, beginning next year, the Board will only have two members left—and without a quorum of at least 3 members, the Board cannot enforce its decisions. Any wonder why the current Board is rushing to get such unpopular rules, such as “snap elections,” passed?
Danger: New Board Rules Ahead
The new “snap” or “quickie” election rule must be drafted and approved by the Board. The new rule will:
- Empower the hearing officer the authority to limit evidence to be introduced at the representation hearing;
- Allow the submission of a post-hearing brief only at the discretion of the hearing officer;
- Eliminate the employer’s right to seek review of the Regional Director’s pre-election rulings;
- Eliminate the present requirement that the Regional Director normally not schedule an election until 25 to 30 days after the direction of the election; and
- Make post-election Board review of Regional Director’s and ALJ’s post-election disputes discretionary.
Fortunately for employers, the Board resolution did not include parts of the earlier proposed rule including a the requirement that employers make available the email address and telephone numbers of employees on the Excelsior list, and change the period of filing for the Excelsior list from seven to two days.
Bottom Line for Employers
If the Snap Election Rule as presented above is adopted, it will significantly aid the unions and union representatives in their attempts to organize employees. Employers will have considerable less time to communicate their positions on unionization to employees.
These proposed changes also hurt employees, who will now be denied the opportunity to learn what unions can, and cannot, do.
If this proposed rule is adopted, the National Labor Relations Board will do what the United States Congress could not when it failed to pass the union’s “card check” bill: Attempt to reverse a decade-long decline in private sector union membership—at the expense of both employers and employees.
-Bud O’Donnell specializes in matters before the National Labor Relations Board including representation elections and unfair labor practice hearings. He also advises clients on plant closings and relocation issues, and has represented clients in collective bargaining, grievance arbitration and strike consultation in numerous industries.
Last month, President Obama signed into law an amendment to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This amendment, the “Veterans Opportunity to Work (VOW) to Hire Heroes Act,” allows USERRA to recognize claims of hostile work environment on account of an individual’s military status, making it easier for employees to sue their employer for discrimination based on their military status.
In addition to increasing educational opportunities, job counseling, and transition and placement assistance available to veterans, this bipartisan legislation creates the same standard for hostile environment claims on account of military status as that are required for Title VII and other employment discrimination claims. Consequently, employers will find it more difficult to end USERRA claims quickly—even where the employee has not suffered a tangible loss.
America’s military is the finest the world has ever known. The women and men of the U.S. armed forces are true heroes, and deserve recognition and respect for the sacrifices they’ve made for this country. So while this blog might not always agree with President Obama’s labor and economic policies, we’re behind the President’s recent decision to amend USERRA. However, as is so often the case with this Administration's policies, the devil’s in the details, and an important question is still to be answered: Will this new law be used to protect members of the U.S. military from anti-military bias? Or will it function as yet another tool to intimidate employers?
Bottom Line for Employers
Given this expansion of USERRA protections, employers should ensure that their EEO policies include “military and veteran status” and that all supervisory personnel are aware of USERRA’s new parameters. Additionally, companies should consider including language prohibiting harassment on the basis of military and/or veteran status in their policies against harassment in the workplace.
-Meredith Diette represents public and private employers before state and federal courts and administrative agencies on a variety of employment-related matters such as claims of discrimination, wrongful discharge, retaliation, sexual harassment, unemployment, and employee discipline.