Decision in Spaulding v. Town of Natick School Committee is a Message to All School Committees

A Superior Court Judge recently issued a decision holding that portions of the Natick School Committee’s Public Participation at School Committee Meetings Policy (the “Policy”) are unconstitutional. The relevant provisions, which are common in similar school committee policies across the Commonwealth, prohibited “improper conduct and remarks” and “defamatory remarks.” Although the Policy allowed “objective criticisms of the school operations and programs,” it provided that the School Committee would not hear “personal complaints of school personnel nor against any member of the school community.”

The Judge, applying well-established First Amendment principles, determined that the public comment portion of a school committee’s meeting creates a “designated public forum,” meaning that the government body can only restrict statements based on their content when necessary to effectuate a compelling state interest. The School Committee argued that it had such “compelling interests” in trying to protect student and staff privacy, promoting a learning environment that fosters success, maintaining a positive workplace, prohibiting bullying and conducting its business in an orderly and efficient manner.

The Judge acknowledged and agreed with the School Committee’s interests and then analyzed those interests in light of the School Committee’s statutory authority to hire and fire the superintendent of schools, review and approve budgets, and establish educational goals and policies for the District. In light of the School Committee’s legal authority, the Judge distinguished between complaints about school operations and programs, which are within the School Committee’s jurisdiction, and personal complaints about staff (excluding the Superintendent) and students, which are not. Thus, the Judge concluded the provision of the Policy prohibiting complaints was lawful, except to the extent it prohibited complaints against individuals under the jurisdiction of the School Committee, i.e., the Superintendent of Schools. The Judge also held that the limitation in the Policy to “objective” criticisms was unconstitutional.

With respect to the prohibition on “defamatory” remarks, the Judge held that the Policy could only lawfully be applied to comments that have been found by a court to be defamatory. Other critical comments, however, may not be prohibited simply because they show an individual or the school district in a negative light. The Judge also held that the prohibition of “improper” and “abusive” remarks was not narrowly tailored to meet the School Committee’s compelling interest in conducting orderly meetings as the First Amendment only allowed for the prohibition of so-called “fighting words” or threats.

Although Spaulding v. Natick School Committee is only a Superior Court decision and, therefore, not binding on school committees state-wide, the decision appears well-reasoned and supported by other precedent-setting decisions. As such, we recommend that all school committees review their current public comment policies. For school committee policies based upon the MASC’s model policies, the relevant policy is BEDH. School committees would be wise to clarify their policies to provide that public comment will only be permitted with regard to matters under the school committee’s jurisdiction. In addition, any references, typically in paragraph 4, to “improper” and “abusive” comments should either be stricken or defined as prohibiting only vulgarities, threats or remarks likely to provoke a violent reaction. References to “defamatory” comments should either be deleted or limited to the unlikely comment related to a matter in which a court has already adjudicated a comment as defamatory. References, typically in paragraph 6, to “objective” criticisms should be deleted.

 The Judge’s full decision, including a description of the specific facts involved, can be found here

 Please contact any member of our Public Education Group if you have any questions or if you need assistance updating your policies regarding public participation at school committee meetings.

 

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Department of Labor Releases Proposed Rule to Increase Minimum Salary Threshold for Overtime Exemption

On March 7, 2019, the Department of Labor released a long-awaited proposal to increase the minimum salary requirement for exempt employees from $23,660 to $35,308.  The DOL’s proposed rule comes nearly two months after it sent the rule to the Federal Office of Management and Budget for review – a story we previously reported about here.  

Assuming the proposed rule is adopted, to be exempt from overtime, an employee would need to be compensated on a salary basis at a rate of not less than $679 per week and perform the job duties required by the applicable “white-collar” exemption – namely, the executive, administrative, professional, outside sales, or computer professional exemption.   According to commentators, the increase in the minimum salary threshold would make 1.1 million additional workers eligible for overtime.

The proposed rule also contemplates a process to update the minimum salary threshold every four years.  The DOL has specifically requested input from the public on how this process should function.   

The proposed regulations will be formally published in the Federal Register next week.  After their publication, members of the public (e.g. employers, unions, business groups, workers’ rights groups, etc.) will have 60 days to comment on the proposed regulations.  Following the notice and comment period, the DOL may decide to amend its proposal based on the feedback it receives.  Alternatively, the DOL could keep its proposed rule intact.  

Readers will recall that in 2016, twenty-one states, the U.S. Chamber of Commerce, and several business groups filed a lawsuit to enjoin the Obama Administration from raising the minimum salary from $455 per week to $913 per week.  Many commentators believe this time around will be no different and readily expect both business and workers’ rights groups to mount legal challenges.

We will keep you updated on this developing story.   

March 7, 2019, the Department of Labor released a long-awaited proposal to increase the minimum salary requirement for exempt employees from $23,660 to $35,308.  The DOL’s proposed rule comes nearly two months after it sent the rule to the Federal Office of Management and Budget for review – a story we previously reported about here.  

Assuming the proposed rule is adopted, to be exempt from overtime, an employee would need to be compensated on a salary basis at a rate of not less than $679 per week and perform the job duties required by the applicable “white-collar” exemption – namely, the executive, administrative, professional, outside sales, or computer professional exemption.   According to commentators, the increase in the minimum salary threshold would make 1.1 million additional workers eligible for overtime.

The proposed rule also contemplates a process to update the minimum salary threshold every four years.  The DOL has specifically requested input from the public on how this process should function.   

The proposed regulations will be formally published in the Federal Register next week.  After their publication, members of the public (e.g. employers, unions, business groups, workers’ rights groups, etc.) will have 60 days to comment on the proposed regulations.  Following the notice and comment period, the DOL may decide to amend its proposal based on the feedback it receives.  Alternatively, the DOL could keep its proposed rule intact.  

Readers will recall that in 2016, twenty-one states, the U.S. Chamber of Commerce, and several business groups filed a lawsuit to enjoin the Obama Administration from raising the minimum salary from $455 per week to $913 per week.  Many commentators believe this time around will be no different and readily expect both business and workers’ rights groups to mount legal challenges.

We will keep you updated on this developing story.   

 

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Coming to a Workplace Near You: New Fair Labor Standards Act Overtime Regulations Appear Imminent

The U.S. Department of Labor (“DOL”) recently sent proposed regulations to the Federal Office of Management and Budget (“OMB”) to amend the Fair Labor Standard Act’s White Collar Exemptions – i.e., the professional, executive and administrative exemptions – by increasing the minimum salary requirement for exempt employees.

Readers may recall that in 2016, the Obama Administration planned to raise the minimum salary requirement for the White Collar Exemptions from $455 per week to $913 per week but was blocked from doing so by Judge Amos L. Mazzant of the United States District Court for the Eastern District of Texas. For a refresher on that case, take a look at our colleague, Bob Kilroy’s, article on Judge Mazzant’s decision here.

It is expected that OMB will take a few months to review the proposed regulations before they are published in the Federal Register, at which point the public (i.e., affected employers) will have the opportunity to review and comment on the proposed regulations for the first time. Following the public comment period, the DOL may further amend the proposed regulations based on comments received, or it could decide to adopt the regulations as proposed, without any further amendments.

Although we cannot anticipate with certainty where the proposed rule will set the minimum salary, several commentators expect the salary level to be set in the low to mid $30,000s, which would equate to a weekly salary of between $575-$700. If this were to happen, employees presently classified as exempt under one of the White Collar Exemptions making less than the new salary level would need to be reclassified as non-exempt hourly employees or, in the alternative, have their pay increased to at least the new salary level to retain their exempt status.

We will continue to track the status of the proposed regulations and update you when they are released for public comment.

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WARN Act Violations ≠ Wage Act Violations

Early in 2018, the Massachusetts Wage Act, G.L. c. 149, §148, was in the news with two noteworthy decisions by the Massachusetts Supreme Judicial Court. Bookending 2018, the Supreme Judicial Court closed the year with yet another decision narrowing the definition of earned wages under the Wage Act, this time in connection with a premature mass layoff.

In the case of Calixto v. Coughlin et al, ISIS Parenting (“ISIS”), which offered pre- and post-natal classes and sold related products, abruptly closed, throwing more than 200 employees out of work. ISIS, however, had failed to give the proper 60-day notice under the federal Worker Adjustment and Retraining Notification (WARN) Act. The employees instituted a federal class action against ISIS and obtained a $2 million default judgment, representing the pay they would have received during the 60-day notice period if the company had not closed prematurely.

As the judgment against ISIS was uncollectable, the employees then filed a state court action against four corporate officers of ISIS alleging that the WARN Act damages were wages to which they were entitled under the Massachusetts Wage Act. They sought to hold those four individuals personally liable and requested that their damages be trebled, remedies available to them only under the Wage Act.

Once again, the Court wasn’t buying. The Wage Act, the Court held, is directed at “particularly egregious behavior, i.e., not paying wages for work actually performed.” It is not intended to provide the same protection and enhanced remedies for other employment violations where work would have been performed but for some intervening event, such as the abrupt closure without notice. Giving the phrase, “wages earned,” its plain and ordinary meaning, the Court affirmed the dismissal of the employees’ suit.

Since his election in 2014, Governor Charlie Baker has appointed five of the seven current Supreme Judicial Court justices. In my blog posts regarding two earlier Wage Act decisions by that Court, Segal v. Genitrix, LLC, and Mui v. Massachusetts Port Authority, [See “Violation of Sick Time Payout Policy Not a Wage Act Violation,” January 31, 2018; “A Bridge Too Far – Individual Liability for Wage Act Violations,” January 3, 2018], I posed the question as to whether we were seeing a determined effort to hold the line against an expansive interpretation of “earned wages” under the Wage Act and the enhanced remedies that result. While it may still be too early to call that race, the recent data points suggest that a narrower view is prevailing.

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U.S. Secretary of Education Released Proposed Changes to Title IX Regulations

On November 16, 2018, U.S. Secretary of Education Betsy DeVos released proposed changes to Title IX regulations on sexual harassment. While the public has 60 days to comment before the regulations take effect, the following are the key aspects of the proposed changes:

  • New Definition.  The previous regulations defined sexual harassment broadly as “unwelcome conduct of a sexual nature.” The newly proposed regulations narrow the definition to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This would create a much higher bar to establish sexual harassment than the current definition.
  • Mandatory Reporting.  Currently, most colleges designate professors and other staff as mandatory reporters, requiring them to report possible incidents to the Title IX Office. The new regulations would only require officials who are able to remedy the situation to report formal complaints, meaning professors, resident advisers and others would no longer necessarily be required to report.
  • Scope.  Colleges would only be responsible for investigating cases where the incident happened on campus or within an educational program or activity. Incidents that occur at off campus housing, for example, would not qualify under the proposed rules.
  • Cross Examination of the Accuser.  The accused would have the guaranteed right to cross-examine the accuser.  This would take place in a live hearing done by a lawyer or adviser, though the parties could be in separate rooms. This is one of the most significant changes from the previous Title IX guidance, which discouraged cross-examination to avoid traumatizing victims.
  • Optional Higher Standard of Proof.  Colleges would have the option of applying either a preponderance of the evidence standard or the more stringent clear and convincing evidence standard to allegations of sexual harassment.
  • Change in Procedures.  Colleges would be allowed to use informal resolution processes, such as mediation, if both parties agree.

The proposed Title IX changes would usher in a fundamental shift in the way colleges adjudicate claims of sexual harassment shifting from an investigative model to a system of court-like hearings, with a narrower definition of offending conduct, varying standards of proof, and the right to cross examination.

 

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Judicial Protection of the Employment Relationship: The Broad Reach of the Workers’ Compensation Retaliation Prohibition

The Massachusetts Appeals Court recently had the opportunity to assess the limits of a statute designed to protect employees – the prohibition on employer retaliation against employees for pursuing Workers’ Compensation claims. The Court seized upon the unique facts of Bermudez v. Dielectric, Inc., to preserve an employee’s right to sue for wrongful termination even where the employer was not the subject of the employee’s Workers’ Compensation claim.

In Bermudez, the plaintiff was an employee of a staffing company assigned to the defendant manufacturer Dielectric.  Following her injury at work, she successfully pursued a Workers’ Compensation claim against the staffing company, not Dielectric.  Once the plaintiff had recovered from her injury, she was hired to a full-time manufacturing position by Dielectric.

Eighteen months later, the plaintiff sued, naming as defendants Dielectric and the Dielectric employee that allegedly caused the original workplace injury. Shortly after, Dielectric fired the plaintiff.  In its termination notice, Dielectric stated “When you sued Dielectric after being compensated for your injury by workers’ compensation, we had little choice but to conclude that you don’t believe in the company and don’t have its best interests in mind.”

The plaintiff then sued Dielectric under the statute prohibiting retaliation against an employee for exercising her Workers’ Compensation rights even though the plaintiff had not exercised those rights against Dielectric. The trial court initially dismissed the wrongful termination claim, finding that the right to sue for negligence did not fall under the prohibition related to the Workers’ Compensation claim asserted against the earlier employer.

On appeal, the Court rejected that distinction and vacated the dismissal. In permitting the plaintiff’s termination claim to proceed, the Court found that a suit for negligence fit within the language found in the Workers’ Compensation statute that prohibited retaliation even if the defendant employer was not the subject of the Workers’ Compensation claim.

The Court noted that the Workers’ Compensation statute was “a remedial statute and should be given a broad interpretation, viewed in light of its purpose and to promote the accomplishment of its beneficent design.” In the Court’s eyes, that “beneficent design” dictated that an employee could accept employment and then sue her employer without repercussion.

While the facts of this situation are sufficiently unique that they are not likely to arise with the vast majority of employers, Bermudez presents an interesting case study about the extent to which courts may go to protect an employee from termination for reasons unrelated to performance.

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Massachusetts Employers: Don’t Forget to Submit the New HIRD Form by November 30

All Massachusetts employers with six or more employees must submit a Health Insurance Responsibility Disclosure form (“HIRD Form”) to MassHealth through the MassTaxConnect web portal by November 30, 2018.

In November 2017, Massachusetts amended Chapter 118E of the General Laws to include a new Section 78, which requires all employers with six or more employees to submit a new HIRD Form on an annual basis, by November 30 each year.  The HIRD Form collects information about employer-sponsored insurance and is designed to assist MassHealth in identifying its members with access to employer-sponsored insurance.  This requirement applies to Massachusetts employers who either: (a) at the time of submission, have six or more employees; or (b) had six or more employees in any month during the past 12 months preceding the due date of the Form.

Notably, employers must submit a separate HIRD Form for each Federal Employer Identification Number issued to the company, and employers must submit a HIRD Form even if they do not offer insurance.  Employers who fail to file the required HIRD Form(s) or who knowingly falsify the information provided on the HIRD Form(s) will be subject to a penalty between $1,000 and $5,000 for each violation.

Please do not hesitate to contact a member of the Labor, Employment and Employee Benefits Group if you have any questions about the HIRD Form requirements.

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