Hartford Marriott Downtown

May 17, 2019 | Hartford Marriott Downtown

Labor and Employment Spring Seminar: 2019 Public Sector Legal Update

Presented by Shipman & Goodwin LLP www.shipmangoodwin.com/LESeminar

www.shipmangoodwin.com Greenwich Hartford New Haven New York, NY Stamford Washington, DC

LABOR AND EMPLOYMENT SPRING SEMINAR: 2019 PUBLIC SECTOR LEGAL UPDATE MAY 17, 2019

TABLE OF CONTENTS

UPDATE ON LABOR AND EMPLOYMENT LAW

Agenda ...... 2

Hartford Marriott Downtown Layout ...... 3

SHIPMAN & GOODWIN PRACTICES

Labor, Employment and Benefits ...... 4 Immigration ...... 5 School Law ...... 6

PLENARY SESSION:

FREE SPEECH IN THE PUBLIC SECTOR WORKPLACE: When Does it Go Too Far? ...... 9

BREAKOUT SESSIONS:

ANNUAL COLLECTIVE BARGAINING UPDATE ...... 26

DCF REPORTING: Changes on the Horizon for Connecticut Public Schools? ...... 54

INDEPENDENT MEDICAL EXAMINATIONS AND THE ADA INTERACTIVE PROCESS ...... 63

THE JANUS DECISION: A Deep Dive for Employers...... 87

AGENDA

8:00 a.m. to 8:30 a.m. Registration Complimentary Coffee & Breakfast 8:30 a.m. to 8:40 a.m. Welcome ~ Thomas B. Mooney 8:40 a.m. to 10:00 a.m. Free Speech in the Public Sector Workplace: When Does it Go Too Far? ~Presenters: Thomas B. Mooney and Jessica Richman Smith (Marriott Ballroom)

10:00 a.m. to 10:15 a.m. Coffee Break

10:15 a.m. to 11:15 a.m. Breakout Session I

• Annual Collective Bargaining Update ~Presenters Kevin M. Roy and Thadius L. Bochain (Marriott Room DE) • DCF Reporting: Changes on the Horizon for Connecticut Public Schools? ~Presenters: Natalia Sieira Millan and Lauren A. Cullen (Marriott Room A) • Independent Medical Examinations and the ADA Interactive Process ~Presenters: Peter J. Murphy, Leander A. Dolphin and Gregory A. Jones (Marriott Room B) • The Janus Decision: A Deep Dive for Employers ~Presenters: Jarad M. Lucan and Ashley L. Marshall (Marriott Room C)

11:15 a.m. to 11:30 a.m. Coffee Break

11:30 a.m. to 12:30 p.m. Breakout Session II

Hartford Marriott Downtown Layout

Plenary Session: • Free Speech in the Public Sector Workplace: When Does it Go Too Far? - Marriott Ballroom Breakouts: • Annual Collective Bargaining Update - (Marriott Room DE) • DCF Reporting: Changes on the Horizon for Connecticut Public Schools? - (Marriott Room A) • Independent Medical Examinations and the ADA Interactive Process - (Marriott Room B) • The Janus Decision: A Deep Dive for Employers - (Marriott Room C)

Labor, Employment and Benefits

Shipman & Goodwin was serving the legal needs of employers even before the National Labor Relations Act was passed in the middle of the last century. From an initial focus on labor relations and collective bargaining, our range of services has expanded as employment law has evolved over the past half century or so.

Members of our practice group have broad and deep experience in employment discrimination, wrongful discharge, wage and hour, workers' compensation, unemployment compensation, OSHA, FMLA, immigration, and virtually every other employment-related field. We represent private sector employers in virtually all sectors of the economy, both for-profit and non-profit, as well as state and local governments and various quasi-public entities. We emphasize preventive counseling, and offer our clients numerous training opportunities, but our employment litigators are fully prepared to defend clients in court if necessary.

On the benefits side, we work actively with employers to design, draft and assist in the ongoing administration of 401(k) plans, profit sharing plans, traditional defined benefit, cash balance and money purchase pension plans, tax-sheltered 403(b) annuity plans, employee bonus plans and severance plans. Our attorneys advise on tax law requirements (including correction of operational errors in plan administration through IRS correction programs) and ERISA fiduciary and investment implications. We also have extensive experience counseling employers with respect to the treatment of benefit plans in corporate transactions.

Labor Relations

Our firm's labor practice originated with the representation of many of Connecticut's major manufacturers in union organizing campaigns and collective bargaining more than fifty years ago. We still work with many unionized employers, and assist in the negotiation of dozens of collective bargaining agreements each year. While the decline of manufacturing in the northeast has reduced the number of bargaining units in the industrial sector of our economy, the rise of unionization in the service sector has more than made up the difference.

In addition, since the passage of legislation in the 1960s authorizing collective bargaining by state and local government employees in Connecticut, we have developed what is widely regarded as the premier public sector labor relations practice in the state. Our representation of local and regional public school districts is so extensive that we have created a school law practice group to focus on those clients.

Our services to employers facing union-related issues involve matters such as:

• Union organizing campaigns and representation elections • Collective bargaining and impasse-resolution procedures • Strikes, picketing, and other concerted activity

• Grievance and arbitration procedures • Defense of unfair labor practice claims

Employment Litigation

When job-related issues cannot be resolved through non-adversary means, we are prepared to aggressively defend employers in state or federal court, as well as the full range of administrative venues. We regularly defend employers in discrimination, wrongful discharge, and other employment-related complaints. We are experienced in dealing with both statutory and common law claims, including complex class actions. With the cooperation and assistance of attorneys from our firm's employee benefits and intellectual property practice groups, we have successfully litigated a variety of ERISA, non-compete and trade secrets cases.

Our goal is to resolve contested cases as early in the process as possible, in order to minimize the costs and risks associated with protracted litigation. Our approach to employment litigation involves providing our clients with:

• Early assessment of the strengths and weaknesses of the case • A projected timetable, cost estimate, and exposure to damages • Review of available alternative dispute resolution (ADR) procedures • A cost benefit analysis of each significant litigation decision • The ability and willingness to pursue the case through trial and related appeals Immigration

Shipman & Goodwin has a full-service immigration practice. Our primarily employment-based clientele includes both small and large health care institutions, manufacturers, investment firms, scientific research firms, computer engineering firms, and accounting and actuarial firms throughout the United States. We serve as counsel to public and private schools regarding all their immigration needs, including F-1 foreign student visas and SEVIS registration and reporting obligations. For the individual, we facilitate family-based and naturalization petitions for our clients with international backgrounds.

We help our business clients realistically develop appropriate strategies for obtaining timely U.S. work authorization for foreign workers who are critical to the implementation of business plans and realization of business goals. We work with the appropriate agencies in the U.S. and abroad to prepare, file and obtain the necessary nonimmigrant visa to permit the foreign worker to work temporarily in the U.S. If the client wishes to retain the foreign worker indefinitely, we assist in obtaining the required immigrant visa, commonly known as a "green card."

Shipman & Goodwin attorneys also work to protect clients from the threat of civil and criminal sanctions for employing illegal foreign workers directly or through subcontractors, arising from increasing audits and workplace raids conducted by Immigration and Customs Enforcement

("ICE") officers. We achieve this objective by advising clients on how to comply with the immigration law that requires all U.S. employers, regardless of size, to verify the U.S. employment authorization of every member of their workforce. We give counsel on appropriate I-9 verification systems and responses to Social Security Administration "No-Match" letters. We assist human resources in conducting an audit of their I-9 verification system and in correcting deficiencies. We regularly advise clients on "best practices" in order to avoid or respond to a government compliance investigation. Similarly, we deal with any issue that the Department of Labor might raise regarding the payment of foreign nationals through our alliance with the Labor and Employment group. Moreover, in the event of a criminal investigation under the U.S. criminal laws that prohibit the harboring and employment of unlawfully present workers, our Immigration Compliance and Enforcement Task Force, with its vast experience in government investigation defense, works with both government agencies and federal prosecutors to resolve any issues that might arise from an investigation or indictment.

Finally, for our international clients with family-based immigration needs, we assist in obtaining immigration visas and U.S. citizenship for them and family members. School Law

Shipman & Goodwin is recognized nationally for the depth and breadth of our education practice. Our school law attorneys represent over 125 local and regional public school districts, including charter schools and magnet schools; more than 30 independent schools, including Montessori schools, Waldorf schools, and religiously affiliated schools; and 20 public and private colleges and universities, including professional schools, medical schools, research universities, and performing and visual arts schools throughout Connecticut, the Northeast and nationally.

We understand the unique and often sensitive issues faced by educational institutions. Our attorneys pay particular attention to how such issues affect a school’s relationship with its students, parents, faculty, staff and the community. We stand ready to counsel school officials on these matters and others, ranging from governance to crisis management, utilizing our extensive experience in school law to provide high-quality legal assistance promptly and cost-effectively.

We represent educational institutions in matters including:

• ADA accommodations and claims • Construction, environmental and real • Admissions and enrollment estate matters • Board governance • Crisis management • Bullying • Cybersecurity and data breaches • Business contracts and procurement • Discrimination, harassment, bullying • Charitable giving and contributions and hazing • Clery Act compliance • Employee benefits matters • Collective bargaining, grievance • Employment counseling and arbitration and other labor matters employment discrimination claims

• Faculty and student relations • Sexual harassment prevention and • FERPA compliance reporting • Finance and investments • Social media • Formations, consolidations and spin- • Special education offs • Student conduct • Free speech issues • Student discipline and student rights • Freedom of information and student • Student, faculty, and employee records handbooks • Governance policies • Student health issues and disabilities • Immigration • Student publications • Intellectual property • Student safety • International travel / field trips • Tax and tax exemption • Investigations • Tenure proceedings and appeals • Risk management • Title IX and Title VI • Search and seizure • Trustee confidentiality agreements • Section 504 • Uniform Prudent Management of Institutional Funds Act (UPMIFA)

Our attorneys regularly conduct onsite trainings on matters relating to:

• ADA and accommodations • Social Media Use by Students and • Bullying, Harassment and Mandated Faculty Reporting • Confidentiality and Student • Data Privacy, Security and Information Regulatory Compliance • Effective Response to Assault and • Legal Rights and Responsibilities for Harassment Claims Board of Education Members • Student and Faculty Misconduct and • Legislative Updates Professional Boundaries • Sexual Harassment Prevention • Enrollment Contracts • Special Education and Section 504 • Risk Assessment and Management • Student Trips and Travel

For more information and to schedule an on-site training, visit our Professional Development and Training Workshops page.

As an added resource for our clients, we have established www.ctschoollaw.com, a minisite dedicated to presenting the latest developments in school law.

Our school law attorneys are often asked to make presentations at conferences sponsored by various regional and national professional education organizations and associations, including the National Association of Independent Schools, the National Association of College and University Attorneys, the Association of Independent Schools in New England, the Connecticut Association of Boards of Education, the Connecticut Association of Independent Schools, the Connecticut Association of Public School Superintendents, the Connecticut Association of Schools, the

Connecticut Association of School Business Officials and the Connecticut Council of Independent Colleges. Our attorneys are active members of the National School Boards Association, as well as the Connecticut and Massachusetts Councils of School Attorneys. In addition, our attorneys contribute to a variety of education-related publications. For example, School Law Practice Group Co-Chair, Thomas B. Mooney, is the author of A Practical Guide to Connecticut School Law, currently in the 9th Edition (2018), the only treatise available on Connecticut public school law.

8 Free Speech in the Public Sector Workplace: When Does it Go Too Far?

Thomas B. Mooney Jessica Richman Smith

FREE SPEECH IN THE PUBLIC SECTOR WORKPLACE: When Does It Go Too Far?

Thomas B. Mooney Jessica Richman Smith

I. PUBLIC EMPLOYEE FREE SPEECH RIGHTS UNDER FEDERAL LAW.

A. The General Rule.

1. Public employees generally have the right under the First Amendment to speak out on matters of public concern. See Pickering v. Board of Education, 391 U.S. 563 (1968).

a. When disciplinary action follows public comments by a public employee, the employee may file suit against the public employer and allege that the disciplinary action is improper retaliation for the exercise of the First Amendment right to speak out on matters of public concern. See, e.g., Burgess v. Independent School District No. I-4 of Noble County, Oklahoma, 65 Fed. Appx. 690 (10th Cir. 2003).

b. Speech made by a public employee on matters of public concern in a private setting will still receive First Amendment protection. See Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979). See also Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 165 (2d Cir. 2006) (letter athletic director sent to school board members protected by First Amendment).

2. To receive First Amendment protection, the speech must relate to a matter of public concern. Statements about purely private matters are not protected by the First Amendment.

a. Examples of protected speech about matters of “public concern”:

i. In Pickering, a teacher wrote to the newspaper and was critical of how the superintendent and the board of education had handled past proposals to raise revenue for the schools. When the teacher was fired, the Illinois Supreme Court upheld the action. The United States Supreme Court reversed, ruling that public employees generally have the right under the First Amendment to speak out on matters of public concern.

ii. In Cioffi, the Second Circuit held that an athletic director who was transferred after speaking out about a hazing incident had a valid claim under the First Amendment because his speech related to a matter of public concern.

iii. In Rankin v. McPherson, 483 U.S. 378 (1987), a police department clerk was fired for saying “The next time they go for him, I hope they get him” after President Reagan was shot. The United States Supreme Court held that the comment was protected by the First Amendment because it related to a matter of public concern, namely President Reagan’s policies toward minorities.

iv. In Spencer v. Philemy, 540 Fed. Appx. 69 (2d Cir. 2013), the Court of Appeals for the Second Circuit held that a teacher’s call to the police about a student’s seriously disruptive and criminal behavior on the grounds of a public school related to a matter of public concern and therefore was protected speech.

b. Examples of unprotected speech about purely private matters:

i. In Connick v. Myers, 461 U.S. 138 (1983), an assistant district attorney, who was about to be transferred over her objection, circulated a questionnaire about office operations, created a “mini- insurrection,” and was fired. With one exception (a question on whether employees felt pressured to work on political campaigns), the United States Supreme Court held that the employee was not speaking on a matter of public concern but rather on a matter of personal grievance (the unwanted transfer), and her actions were not protected by the First Amendment.

ii. In City of San Diego v. Roe, 543 U.S. 77 (2004), the United States Supreme Court held that selling sexually-explicit videotapes was not protected by the First Amendment.

iii. In Beamon v. Yale-New Haven Hospital, Inc., 2017 WL 969266 (D. Conn. 2017), a federal district court in Connecticut held that a single workplace encounter between a surgical technician and a physician, in which the technician made certain inappropriate remarks to the physician, did not involve speech by the technician that was protected by the First Amendment. The Court noted, “[a]n employee’s speech addresses a matter of public concern when the speech can ‘be fairly considered as relating to any matter of political, social or other concern to the community.’”

iv. In Brown v. Regional School District 13, 328 F. Supp. 2d 289 (D. Conn. 2004), a federal district court in Connecticut held that conferring with an attorney about a teacher’s non-renewal was not protected speech.

3. Public employees also have rights of symbolic free speech under the First Amendment. See James v. Board of Education, 461 F.2d 566 (2d Cir. 1972) (holding that a teacher’s rights under the First Amendment could not be restricted any more than those of students, at least in the absence of interference with the requirement of appropriate discipline in the operation of the school).

B. Seriously Disruptive Speech.

1. Even if a statement otherwise would be protected under the First Amendment, some speech is too damaging to the operation of the public enterprise to be protected from regulation.

a. The free speech interests of public employees must be balanced against the legitimate interest of public agencies to operate efficiently. If the speech is a serious disruption, the employer can prohibit it and/or take related disciplinary action against the employee. Connick, 461 U.S. 138.

b. When an employee would have been disciplined without regard to his or her speech, there is no First Amendment violation, even if it is impossible completely to exclude motivation related to the speech. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274 (1977). See also Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008) (nonrenewal for insubordination upheld despite free speech claim because independent cause existed for the action).

2. Following Connick, courts have identified the following factors that must be considered in determining whether speech by a public employee is protected:

a. The need for harmony in the public workplace;

b. Whether there is a need for a close working relationship between the speaker and the persons who could be affected by the speech;

c. The time, manner, and place of the speech;

d. The context in which the dispute arose;

e. The degree of public interest in the speech; and

f. Whether the speech impeded the ability of other employees to perform their duties.

3. Applying the factors above to various situations, courts have found certain speech not to be protected. For example:

a. In Tuskowski v. Griffin, 359 F. Supp. 2d. 225 (D. Conn. 2005), a federal court in Connecticut held that a state trooper’s comment to her union representative that her supervisor is an “idiot” (or worse) in front of the supervisor was not protected by the First Amendment.

b. In Melzer v. Board of Education of the City of New York, 336 F.3d 185 (2d Cir. 2003), cert. denied, 540 U.S. 1183 (2004), the New York City Board of Education fired a teacher for his work in editing the newsletter for an organization that advocated sexual relations between men and boys, despite the fact that there was no evidence of actual misconduct. The Second Circuit rejected the teacher’s claim that his free speech rights were violated because such statements were likely to impair the teacher’s effectiveness and to cause disruption.

c. In Munroe v. Central Bucks School District, 805 F.3d 454 (3d Cir. 2015), the Third Circuit held that a teacher’s blog posts that were insulting to students and parents were disruptive and not protected by the First Amendment.

4. Administrators generally are held to a higher standard given their responsibilities.

a. Administrators have policy-making responsibilities and close working relationships with the superintendent and the board of education. Accordingly, when administrators speak out against the superintendent or the board, even on a matter of public concern, their speech may not be protected. For example:

i. In Rock v. Levinski, 791 F.3d 1215 (10th Cir. 2015), the Tenth Circuit dismissed a free speech claim by a principal who was fired for publicly opposing the district’s reorganization plan, given her policy-making role.

ii. In Sharp v. Lindsey, 285 F.3d 479 (6th Cir. 2002), the Sixth Circuit dismissed the free speech claim of a principal who was demoted after criticizing the superintendent, ruling that the superintendent had the right to expect cooperation and support from a close subordinate.

iii. By contrast, in Hubbard v. Clayton County School Board, 756 F.3d 1264 (11th Cir. 2014), the Eleventh Circuit held that an administrator’s public remarks that were critical of the board of education were protected by the First Amendment because at the time the administrator made the remarks, he was speaking as union president and had been “on loan” to the union and relieved of his administrator responsibilities even though he technically remained a board employee.

5. Speech through social media is subject to the same rules.

a. In Central Bucks School District, a high school teacher had a blog, and in speaking about grading, she wrote:

Thus, for this blog, I will list the comments I’d like to see added to the canned comment list, as an accurate reflection of what we really want to say to these parents. Here they are, in no particular order: [small sampling]

• Has no business being in Honors.

• A complete and utter jerk in all ways. Although academically ok, your child has no other redeeming qualities.

• Lazy.

• Gimme an A.I.R.H.E.A.D. What’s that spell? Your kid!

• Nowhere near as good as her sibling. Are you sure they’re related?

• Frightfully dim.

• Dresses like a street walker.

The Third Circuit held that the teacher’s statements on her blog were not protected speech because, though they related to matters of public concern, they were disruptive (citing protests by students and parents who were offended by the teacher’s comments).

b. In Richerson v. Beckon, 337 Fed. Appx. 637 (9th Cir. 2009), a teacher had a blog which included “several highly personal and vituperative comments about her employers, union representatives, and fellow teachers.” Although the teacher did not refer to these individuals by name, many were easily identifiable by the description of their positions or their personal attributes. When the teacher’s blog came to light, the

district received several complaints from teachers and other employees, and the teacher was transferred to a different position as a result. The Ninth Circuit held that the legitimate administrative interests of the district outweighed the teacher’s First Amendment interests in not being transferred because of her speech. The Court based its decision on its conclusion that the teacher’s speech disrupted co-worker relations, eroded a close working relationship premised on personal loyalty and confidentiality, and interfered with the teacher’s performance of her duties.

C. False Speech/Defamation.

1. It is not permissible to discipline an employee simply because a statement made is false. Rather, inaccurate statements will be cause for discipline only when they are made with the knowledge that they are false or are made with reckless disregard for the truth (or when they are otherwise not protected speech). See Pickering, 391 U.S. 563.

D. Speech Pursuant to Duty.

1. Speech expressed as part of one’s job duties is not protected by the First Amendment. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that: “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

a. The Garcetti holding applies to teaching itself. See Mayer v. Monroe Community School Corporation, 474 F.3d 477 (7th Cir. 2007), cert. denied, 128 S. Ct. 160 (2007) (classroom comments on the war in Iraq not protected speech).

b. The Garcetti holding also applies to non-curricular job-related speech. See, e.g., Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), cert. denied, 131 S. Ct. 444 (2011) (finding a grievance a “core” teaching duty and, as such, not protected by the First Amendment, where grievance challenged the school administration’s refusal to discipline a student who had thrown books at the teacher during class).

2. Notwithstanding the Garcetti holding, which was decided under the First Amendment, work-related speech still may be protected under other statutes or state constitutional provisions. The following are examples:

a. In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the United States Supreme Court decided that a basketball coach could have his day in court to argue that his employer violated Title IX by retaliating against him for his public complaints about discrimination against the girls’ basketball team.

b. In CBOCS West. Inc. v. Humphries, 553 U.S. 442 (2008), an employee was permitted to claim retaliation under 42 U.S.C. § 1981 for having made critical comments about the employer’s racially discriminatory practices.

c. In Sturm v. Rocky Hill Board of Education, 2005 U.S. Dist. LEXIS 4954 (D. Conn. 2005), a teacher was permitted to make a claim that her nonrenewal allegedly in retaliation for her advocacy violated her Section 504 rights.

d. In Konits v. Valley Stream Central High School District, 394 F. 3d 121 (2d Cir. 2005), the Second Circuit held that an employee’s assistance to a co-worker in making a gender discrimination claim was protected speech.

e. Speech that relates to working conditions may be considered “concerted activity” protected by the applicable collective bargaining statute. See Section E, below.

E. Protected Concerted Activity.

1. Section 7 of the National Labor Relations Act (“Section 7”) gives employees the statutory right to improve terms and conditions of employment or otherwise improve their lot.

2. The National Labor Relations Board (“NLRB”) has said in recent years that Section 7 rights include the use by employees of social media to communicate with each other and the public for the purpose of improving terms and conditions of employment.

3. “Liking” workplace comments on Facebook has been considered to be protected activity under Section 7, so long as the comments liked were themselves protected under Section 7. In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. N.L.R.B., 629 Fed. Appx. 33 (2d Cir. 2015), the Second Circuit affirmed an NLRB ruling that discipline of employees for “liking” and commenting on a post on Facebook violated their Section 7 rights by restraining the employees from exercising their right to collective, concerted activity. In that case, the NLRB found that the employer’s social media policy prohibiting “inappropriate

discussions about the company” was overly broad and interfered with employees’ protected rights. Three D, LLC d/b/a Triple Play Sports Bar and Grille and Jillian Sanzone and Vincent Spinella, 361 NLRB No. 31 (N.L.R.B. 2014).

II. PUBLIC EMPLOYEE FREE SPEECH RIGHTS UNDER CONNECTICUT LAW.

A. The General Rule.

1. Public employees in Connecticut have a constitutional and/or statutory claim in matters of free speech that extends beyond the First Amendment of the United States Constitution.

a. Article First, Section 4 of the Connecticut Constitution provides that “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

b. Conn. Gen. Stat. § 31-51q prohibits all Connecticut employers, public and private, from taking adverse employment action against employees who exercise their free speech rights under the First Amendment and under Article First, Sections 3, 4 and 14 of the Connecticut Constitution.

B. Speech Pursuant to Duty.

1. The Connecticut Supreme Court has held that speech that is related to job responsibilities is protected by the Connecticut Constitution and Conn. Gen. Stat. § 31-51q, but only if it relates to official dishonesty, other serious wrongdoing, or threats to health and safety. Otherwise, the employer’s right to maintain order in the workplace prevails. See Trusz v. USB Realty Investors, LLC, 319 Conn. 175 (2015).

III. FREE SPEECH IN PUBLIC FORA CREATED OR MAINTAINED BY PUBLIC AGENCIES.

A. Public Meetings.

1. If a public agency chooses to hear from the public during a public meeting, it must do so in a constitutional manner. Specifically, once a public agency has created a public forum, it may not pick and choose from among the speakers on the basis of the viewpoint they express. City of Madison v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976).

2. A public agency may limit comments at a particular public meeting to a specific topic and thus create a limited public forum. However, even with a limited public forum, all must be free to speak to the issue without discrimination based on

viewpoint. See, e.g., Besler v. Board of Education of West Windsor-Plainsboro Regional School District, 201 N.J. 544 (New Jersey 2010) (constitutional violation when board of education chair silenced parent during public comment based on viewpoint discrimination).

B. Social Media.

1. The law is still evolving, but certain principles apply.

2. Social media created and/or maintained and monitored by public agencies or officials may be considered a public forum subject to First Amendment principles, including the requirement that persons have a viewpoint-neutral right of access to that forum. For example:

a. In Davison v. Loudoun Cty. Bd. of Supervisors, 227 F. Supp. 3d 605, (E.D. Va. 2017), a federal court in Virginia found that a Facebook page was a limited public forum for First Amendment purposes where the County had a policy stating that “the purpose of Loudoun County social media sites is to present matters of public interest in Loudoun County” and stating further that visitors are “encourage[d] to submit questions, comments and concerns,” but that “the county reserve[d] the right to delete submissions” that violated enumerated rules, such as comments that include “vulgar language” or “spam.” The court found that this policy “evinces the County’s purposeful choice to open its social media websites to those wishing to post ‘questions, comments and concerns’ within certain limits.” The court also held that “speech online is treated no differently from speech offline under the First Amendment.”

b. In Leuthy v. Lepage, 2018 WL 4134628 (D. Maine 2018), a federal court in Maine denied a motion by the Governor to dismiss a First Amendment claim after plaintiffs’ comments were deleted from the Governor’s social media page).

c. In Garnier v. Poway Independent School District, 2018 WL 2357151 (S.D. Calif. 2018), a federal court in California denied a motion to dismiss a First Amendment claim after the plaintiff was blocked from social media pages by two board of education members who used Facebook and Twitter to disseminate information about the school district.

d. By contrast, in Morgan v. Bevin, 298 F. Supp. 3d (E.D. Kentucky 2018), a federal district court in Kentucky denied an injunction, finding that the Governor’s Facebook and Twitter accounts are not public fora.

Note: This outline is not a substitute for legal advice on a particular case. It is a general summary of the key principles. If you have any questions about an actual case or matter, please be sure to provide the actual facts to and seek counsel from your lawyer. For more information, please contact the attorneys identified in this outline.

Thomas B. Mooney Partner

P (860) 251-5710 / F (860) 251-5215 [email protected]

Thomas Mooney is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and all other legal proceedings involving boards of education. In addition, Tom has taught school law at the University of Connecticut School of Law since 1985, and has served as Professor in Residence at the Neag School of

Education at the University of Connecticut since 2001.

Tom is the author of A Practical Guide to Connecticut School Law (9th Edition, 2018), a comprehensive treatise on Connecticut school law, published by CABE and used by teachers, administrators and board of education members throughout PRACTICE AREAS the state. He also writes two monthly columns, "See You in Court!," which appears in the CABE Journal, and "Legal Mailbag," which appears in the CAS • Employment Law Bulletin. In 2000, CABE awarded Tom its Friend of Public Education award, and • Labor, Employment and Benefits in 2001, the Connecticut Association of Schools awarded Tom its Distinguished • Public Schools Friend of Education Award, its highest award for persons not directly involved in • School Law public education. Tom is Co-Chair of the firm’s School Law Practice Group.

EDUCATION

• Harvard Law School J.D., 1976, cum laude • Yale College B.A., 1973, magna cum laude, Phi Beta Kappa

BAR ADMISSIONS

• Connecticut

DISTINCTIONS

• AV Preeminent® Rated, Martindale-Hubbell • Listed as a Connecticut Super Lawyer®: Schools & Education (2007; 2014, 2015, 2016, 2017, 2018) • Listed in The Best Lawyers in America®: Education Law; Employment Law; Labor Law (2006-2019) • Named "Lawyer of the Year" (2013, 2015, 2016, 2018): Best Lawyers Hartford Region Education Law • Named "Lawyer of the Year" (2019): Best Lawyers Hartford Region Employment Law

• Named "Lawyer of the Year" (2017): Best Lawyers Hartford Region Labor Law • President's Award, New England Association of School Superintendents (2017) • Professional Excellence Award, Connecticut Law Tribune (2016) • Distinguished Friend of Public Education Award, Connecticut Association of Schools (2001) • Friend of Public Education Award, Connecticut Association of Boards of Education (2000) • American Bar Foundation: Fellow • Connecticut Bar Foundation: James W. Cooper Sustaining Life Fellow • Harvard International Law Journal, Articles Editor

TEACHING POSITIONS

• University of Connecticut: Professor in Residence, Neag School of Education • University of Connecticut School of Law: Adjunct Professor, Law and Public Education

PROFESSIONAL AFFILIATIONS

• American Bar Association • Connecticut Bar Association • Hartford County Bar Association • Connecticut School Attorneys Council: Former President

Jessica Richman Smith Partner

P (203) 324-8157 / F (203) 324-8199 [email protected]

Jessica Richman Smith represents schools in a variety of education, labor relations and employment law matters. Jessica negotiates certified and non-certified collective bargaining agreements on behalf of numerous public boards of education. She also represents school districts in labor and employment disputes, arbitrations, freedom of information hearings, teacher tenure proceedings, business contract matters, student disciplinary matters, election law matters, and other legal

proceedings arising in the education context. In addition, Jessica advises schools on education policies and practices, investigations concerning students and employees, compliance with various laws impacting schools (such as the Family Educational Rights and Privacy Act, the Connecticut Freedom of Information Act, background check laws, and mandated reporting) and other legal matters affecting PRACTICE AREAS educational institutions. • Labor, Employment and Benefits Jessica’s previous experience working with educational institutions includes serving • Public Schools as Deputy Executive Director with the New York City Department of Education • School Law and a term as a middle school English teacher with Solomon Schechter Day School of Nassau County.

Prior to joining Shipman & Goodwin LLP, Jessica practiced in the area of complex business and financial litigation as an associate with two New York City firms.

EDUCATION

• Harvard Law School J.D., 2005 • Harvard College A.B., summa cum laude, 2001

BAR ADMISSIONS

• Connecticut • New York

COURT ADMISSIONS

• U.S. District Court, Eastern District of NY • U.S. District Court, Southern District of NY

DISTINCTIONS

• Journal on Legislation, Article Editor • Chancellor's Fellow, New York City Department of Education

TEACHING POSITIONS

• University of Connecticut, Neag School of Education: Adjunct Professor (2015-2016) • Solomon Schechter Day School of Nassau County: English Teacher (2001-2002)

PROFESSIONAL AFFILIATIONS

• American Bar Association • Connecticut Bar Association • Fairfield County Bar Association

NOTES

25 Annual Collective Bargaining Update

Kevin M. Roy Thadius L. Bochain

ANNUAL COLLECTIVE BARGAINING UPDATE

Kevin M. Roy Thadius L. Bochain

I. CONNECTICUT PUBLIC SECTOR BARGAINING LAWS.

A. Municipal Employees Relations Act (“MERA”) Conn. Gen. Stat. § 7-467, et seq.

B. Teacher Negotiations Act (“TNA”) Conn. Gen. Stat. § 10-153a, et seq.

C. State Employees Relations Act (“SERA”) Conn. Gen. Stat. § 5-270, et seq.

II. NEGOTIATING COLLECTIVE BARGAINING AGREEMENTS 101.

A. The process of negotiating a collective bargaining agreement is relatively straightforward, but it can be time consuming. By establishing and following an early framework (ground rules, dates for final proposals, etc.), you can maximize efficiency.

B. Duty to bargain in good faith.

1. Meet at reasonable times, confer in good faith on mandatory subjects of bargaining, execute a written contract incorporating any agreement reached, etc.

2. There is no obligation to compromise one’s position or make concessions. Parties should come to the table prepared to listen to one another and to make proposals and counterproposals.

3. Employer may only negotiate directly with the designated representative; Union is obligated to represent all members fairly.

4. Obligations continue even after the parties reach a new contract - e.g., employers must provide information that is arguably relevant to the collective bargaining process.

C. Scope of bargaining.

1. Mandatory subjects of bargaining – wages, salaries, benefits, leave provisions, work load, etc.

a. “There is overlap between managerial functions and existing conditions of employment and we distinguish mandatory and non-mandatory subjects by using a balancing test derived from West Hartford Education Association v. DeCourcy, 162 Conn. 566, 583-584 (1972), which compares the directness and depth of impingement on conditions of employment with the extent of the employer’s need for unilateral action without negotiation to serve or preserve an important policy decision.” City of Hartford, Decision No. 4719 (St. Bd. Lab. Rel. 2014)

b. Although some decisions may be a legitimate exercise of a management prerogative, an employer may be obligated to bargain over the impact of such a decision. An example could include a board of education’s decision to eliminate recess without bargaining. However, a Union would have the right to demand to bargain over the impact of such a decision on the conditions of employment.

2. Permissive subjects of bargaining - length and scheduling of the school year, teacher evaluation, bargaining unit determination, etc.

a. Either party may simply decline to negotiate over a permissive subject.

3. Illegal subjects of bargaining - parity language, language which conflicts with legal requirements, teacher dismissal, etc.

b. Nobody goes to jail, but the provisions will be null and void.

III. STAGES OF COLLECTIVE BARGAINING.

A. Initial and successor contract negotiations.

B. Mediation.

1. If contractual disputes are not fully resolved in negotiations, the public sector bargaining laws provide that disputes be mediated prior to arbitration.

2. Appointment of a Mediator.

a. Under SERA, upon the joint request of the parties, the State Board of Mediation and Arbitration appoints a mediator which both parties must approve prior to mediation sessions.

b. Under MERA, both the municipal employer and the employee organization must agree to mediate. State Board of Mediation Arbitration appoints after request is made.

c. Under TNA, parties must select a mediator on or before the 160th day prior to the district’s budget submission date or one will be appointed by the Commissioner of Education. The mediators are sent on behalf of the Department of Education.

d. Of course, parties may, by mutual agreement decide on a private mediator or one available through some other entity than the SBMA.

3. In either case, the mediator has no power to compel agreement and does not make recommendation or write a report.

4. All discussions and proposals made during mediation are off the record and cannot be used in any further proceeding.

C. Interest arbitration.

1. If contract negotiations and mediation are unsuccessful parties proceed to arbitration.

IV. PREPARATION AND STRATEGIES FOR COLLECTIVE BARGAINING.

A. Preparation for negotiations is all the more important.

1. Conduct historical analysis of what issues are priority ones. Consider prior negotiations, grievances, arbitrations, managerial and operational obstacles, and, of course, budgetary constraints. Confer with supervisors, department heads and support functions (e.g., Finance).

2. Conduct wage/benefit survey. Compare other bargaining unit and non-bargaining unit employees within the municipality or board, other state, municipal or board employees, and private sector employees in the analysis.

3. Assess changes in the cost of living. Consider basic Consumer Price Index (CPI) data for recent period and projections for future increases as well as CPI data on specific items relevant to issues (e.g., medical care cost component of CPI, clothing and apparel increases). Analyze employees’ increases in real income over term of last contract and as proposed in new contract.

4. Evaluate prevailing labor market conditions. Contemplate trends with respect to salaries and major benefits in settlements – public and private – on a state, regional, and national basis. Comparables should be appropriate in light of relevant factors such as geographical location, size, relative wealth and resources, state aid and rankings, etc.

5. Collect bargaining unit demographic data. Be sure to compile all necessary information including date of birth/age, position, seniority/years of service, medical benefit coverage, accrued benefits (sick, vacation, etc.), and rates of absenteeism.

6. Gather current cost data. Assemble information regarding wages, overtime costs, medical benefits, leave benefits (sick, personal, vacation, etc.), pension, and other contractual economic benefits.

7. Generate economic and non-economic proposals and gather affirmative evidence in support of proposals.

8. Remember to cost-out all economic proposals. Avoid narrowing in on solely salary/wages without considering potential savings by getting changes to other benefits like insurance.

B. Assess the employee relations climate.

1. Workable, adversarial, or collaborative. The status of the relationship will have a demonstrable impact on negotiations.

2. Respect the Union’s role.

a. Acknowledge legal constraints such as limitations on unilateral management action and prohibitions on bargaining with individual employees.

b. Recognize the Union’s responsibility to its members.

c. Realize the Local as part of a larger organization which may impact the conduct of the Union in negotiations due to restrictions under Union constitutions and bylaws or institutional policies on particular subject areas.

d. Union politics will likely play a role.

3. Reaching out to Union leadership may be beneficial.

a. Information development and sharing.

b. Allowing some Union representation on committees or working groups such as Labor-Management Committees and Task Forces may improve morale or provide a showing of good faith, in a tight negotiating season.

c. Common interests.

4. Evaluate Union proposals. It is critical to cost-out economic proposals and compile data to refute such proposals.

5. Consider potential accommodations and compromises. Determine what interests of the employees and the Union the employer is willing to accommodate, if any. This may involve consideration of transitions, tradeoffs, and/or risk-taking.

C. Be prepared to deal with concessions at the impasse resolution stage.

1. Difficulties posed by the last best offer interest arbitration. While arbitrators cannot award a middle ground on a particular issue, they tend to split issues relatively evenly on the overall award.

2. Do your research on the neutral arbitrators. Sometimes a reading of prior arbitration awards can provide helpful insight on likelihood of success on an issue.

3. Selecting the issues is key. Think about the overall strategy. What issues, if any, can you afford to lose? Very rare that one party wins every issue.

4. Evidence of comparability, need, historical costs, savings, interests of employees, etc. is critical. Arbitrator will base the award on two factors, the ability to pay (economic) and the public interest.

5. The “reasonableness” of the last best offer has heightened importance. Being too aggressive may increase your risk losing the issue. Goal is to get as much as you can without overreaching.

6. Appoint an experienced management representative to the arbitration panel. Recognize the importance of the role of your panel member.

D. Gather solid evidence concerning statutory factors for interest arbitration.

1. Priority Factors: Public Interest and the Financial Capability of the Employer.

a. Operational as well as fiscal impact of a proposal.

b. Data and news items on the employer’s own fiscal situation, impact of state budget and economic trends locally, statewide and nationally.

c. Comparison group data on wealth and effort such as: equalized mill rates; per capita income; average property taxes on residential sales; state aid as percent of total revenue; per capita current taxes and expenditures including police and/or fire if relevant; “wealth” rankings.

d. Ability to Pay Considerations.

i. What is the employer’s financial situation?

ii. What will be the fiscal impact of the proposed change in benefits on the employer’s own fiscal circumstances?

iii. Where does that proposed benefit fit in the employer’s scheme of priorities?

iv. How will the proposed benefit affect the expectations of other employee groups?

2. Other Statutory Factors: Negotiating History; Interests and Welfare of the Employee Group; Changes in Cost of Living Over Prior 3 Years; Existing Conditions of Employment of Employee Group and Those of Similar Groups; and Wages, Fringe Benefits, and Other Conditions of Employment in State Labor Market.

V. LEGAL UPDATE.

A. The Janus decision and its effects.

1. Janus v. Am. Fed’n of State, County and Mun. Emp’s, Council 31, 138 S. Ct. 2448 (2018), was decided on June 27, 2018.

2. The plaintiff, Mark Janus, did not want to join his union, citing concerns regarding its positions on fiscal matters during collective bargaining.

3. Although he did not have to join the Union, he did have to pay a “service fee” of $44.58 per month to support the Union.

4. He challenged the constitutionality of the service fee, claiming it violated his First Amendment rights.

5. There was a prior case that addressed this issue, Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).

a. The Court there concluded that service fees were acceptable in the context of paying for collective bargaining.

i. Specifically, the Court was concerned about “free riders,” who, although did not support collective bargaining, still received the benefits of it.

ii. “[I]interference [with First Amendment rights] is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”

b. The Court denied, however, that service fees were acceptable for other purposes, such as political rallies and whatnot.

6. The Court in Janus overruled Abood.

7. Collective bargaining and grievances—two areas which normally are supported under Abood—naturally cause the union to present views that a member may not agree with.

8. Service fees can no longer be imposed for those who do not wish to be in a union.

B. What has been the effect of Janus?

1. Contract provisions requiring service fees are not being enforced, and are being removed from contracts.

2. There is a remaining question, however, about what happens if a member wants to withdraw from a union outside of any applicable withdrawal period and requests the municipality or public entity to stop withdrawing dues.

a. The employer has the obligation not to withdraw the funds if the member does not request it.

b. The unions argue, however, that the payment of union dues is a contract issue between it and the member—the employer’s cessation of withdrawal for dues would amount to interference with union activities.

c. There is no clear answer, the Department of Labor will not comment.

d. The question, really, is would you rather be in a contract dispute with the union, or a wage and hour dispute?

VI. RECENT TRENDS IN COLLECTIVE BARGAINING.

A. Settlements Under MERA (Last 18 Months).

Year BOE Municipal* Police Fire Overall Effective 2017-18 1.88% 2.10% 2.00% 2.04% 1.95% 2018-19 1.88% 2.00% 2.13% 2.27% 1.94% 2019-20 2.08% 1.96% 1.87% 2.24% 2.07% 2020-21 2.07% 1.65% ** ** 2.06%

*Does not include police and fire settlements. **Not enough settlement data for Police & Fire Settlements in 2020-21. Note: Settlement percentages do not include increment.

B. Teacher and Administrator Salary Settlements (2018-19 Season as of May 2, 2019) (Including Increment).

Year Effective Teachers Administrators 2019-20 2.69% 2.04% 2020-21 2.87% 2.16% 2021-22 2.90% 2.22%

C. Teacher and Administrator Salary Settlements (2018-19 Season as of 5/2/19) (Excluding Increment).

Year Effective Teachers Administrators 2019-20 1.64% 1.58% 2020-21 1.75% 1.73% 2021-22 1.73% 1.90%

Note: Increases that are not applied to all steps of the schedule are not included in these averages.

D. Health Insurance Trends.

1. Many employers are now switching to the State Partnership Plan 2.0.

a. As of this presentation, approximately 107 different municipalities, municipal groups, and boards of education have moved to the State Plan.

2. Many employers have a high deductible plan as their sole plan or as an option.

3. Approximately 136 teachers’ bargaining groups have an HDHP as their sole plan or as an option.

VII. INTEREST ARBITRATION CASE STUDIES.

A. Town of Easton and IAFF, Local 1426 (Jan. 17, 2019) (Ricci, Lennon, Romanow).

1. The two major issues in dispute were insurance and salary.

2. The Town’s last best offer was the Connecticut Partnership Plan 2.0 (the “CPP”). The Union proposed a $2000/4,000 High Deductible Health Plan (the “HDHP”) that would be 50% employer funded, and would also include an Rx carve-out.

3. The Union argued that the HDHP would save the Town money because it was cheaper than the CPP.

4. On the other hand, the Town argued that although the HDHP represented greater cost savings for the Town, it was not the better plan for the unit because it would actually end up costing the employees more than the CPP. The Town believed that the CPP better served the public interest because of the more reasonable cost to bargaining unit members.

5. The Panel awarded the issue to the Town, which proposed the CPP. The Panel pointed out that it was unique that the Union was not advocating for the CPP, which is generally considered to have better benefits for employees at a good price point. The Panel concluded that the CPP had the greater benefit.

6. The Union’s last best offer on overtime was to add provisions that would allow overtime to be paid at a rate of one and one-half (1.5) for hours worked in excess of 42 hours.

7. The current contract had no such language because the Town had followed the “Garcia” exemption of the Fair Labor Standards Act (the “FLSA”), which allows the Town to deviate from traditional notions of overtime under the FLSA.

8. The Panel awarded the issue to the Town, reasoning that the Union did not provide enough evidence to support adding in new language to the contract. The Town had followed the “Garcia” exemption for many years. The Panel needed a compelling argument that the addition of the Union’s proposed language would serve the public interest.

B. Waterbury Board of Education and Waterbury Teachers’ Association, (Jan. 17, 2019) (Williamson, Romanow, McKinley).

1. There were a significant number of issues in dispute, but notable were the arguments regarding salaries.

2. The City had not seen significant growth in its revenue for the year. Indeed, it needed to close a funding gap by reorganizing and eliminating positions.

3. Governor Lamont’s statement that municipalities should not rely on additional funding also factored into the Panel’s decision.

4. The Panel felt that the teachers were owed something, but they had only the two best offers to choose from.

5. The financial capabilities of the City weighed in favor of supporting a 0% general wage increase, as opposed to the teacher’s proposal of 2.25%.

6. The comparisons within the City to other groups supported a 0% general wage increase.

7. The Panel concluded that the comparisons supported the City’s proposal.

8. NOTE: If the teachers had offered something slightly lower, the Panel may have accepted that. The Panel observed that it was limited only to the two options presented, and 0% seemed more reasonable than the 2.25%. If a final best offer of less than 2.25% was made, the Panel may have felt that was reasonable.

C. City of Hartford and Hartford Municipal Employees Association (HMEA), 2018- MBA-393 (Feb. 25, 2019) (Ricci, Romanow, Franzo).

1. As many may know, Hartford is subject to the Municipal Accountability Review Board (MARB), which reviews all new contracts.

2. The biggest concern was the salary proposals.

a. Hartford is in considerable financial distress, and, accordingly, has been seeking 0% wage freezes for almost all of its bargaining units.

b. The Union agreed to take 0% freezes for the first two years of the agreement, but wanted 1.25% and 2.0% wage increases for the last two years.

c. Considering the City’s financial woes, however, the Panel decided that the City’s offer of 0% for four years was sufficient.

d. For the first three years there would not be any step increases either.

e. The Panel, however, awarded a step increase to all members in the last year of the contract. This was based on the fairness of awarding more pay for more experienced workers.

3. There was also the issue of adding in a High Deductible Health Plan (HDHP).

a. The Union agreed to move to a HDHP, but was contesting a co-insurance payment above the deductible.

b. The Panel observed that other units have the same plan, Hartford has an incredibly low ability to pay, and HDHPs are “ubiquitous” in the public and private sector.

c. Although co-insurance is “not prevalent in the public sector,” it was awarded in a recent New Canaan Teacher arbitration and not entirely obscure.

d. The Panel awarded this issue to the City, but awarded a buy-up option to the Union.

D. Hartford Board of Education and Hartford Federation of Teachers (Feb. 7, 2019) (Williamson, Romanow, Gesmonde).

1. Parties submitted a stipulated award, so there were no final offers made.

2. Of note, the teachers were particularly adamant about getting a raise, because they had taken a hard freeze in the last bargaining session of their own volition. While other bargaining groups in the city had taken 0% wage increases, there was some step movement in some of those agreements.

3. The parties eventually settled on a modest GWI in all years, but no step movement, which equated to the amount of increase with step movement in other City agreements.

4. Of particular note is that, unlike other City groups, a teacher’s agreement pursuant to an arbitration award, or a stipulated award, is not subject to the MARB; Connecticut General Statutes § 7-576d has a carve out for “teacher’s units.”

E. Hartford Board of Education and Hartford Principals and Supervisors’ Association (Feb. 7, 2019) (Weiner, Romanow, Doyle).

1. This, also, was a stipulated award.

2. The only major issue was wages, however, because the supervisors had already moved over to an HDHP in prior agreements.

3. The supervisors had considerable wage increases in prior years—they had not taken a single year of no wage increases since the 90s.

4. The parties eventually settled on 0%, 0%, and 2.5%.

5. This agreement was odd, however, because it was originally believed that the supervisors constituted a “teacher’s unit” within the MARB statute and the MARB did not have authority to reject the award.

a. As noted above, the MARB has a carve-out for teacher’s units, and any arbitration award cannot be rejected by the MARB.

6. The MARB’s only recourse, however, was to send it back to arbitration for the arbitrators to re-evaluate the last best offers, but there weren’t any last best offers because it was a stipulated agreement.

7. The MARB recently accepted this award.

F. Town of Wallingford and UPSEU, Local 424-17 (Supervisors) (April 2, 2019) (Ricci, Ward, Geer).

1. Various issues raised by the parties.

2. Both sides offered very similar insurance proposals, and the panel noted that the HDHP/HSA has become the ubiquitous plan in the labor market because of the

overall shared health savings. Thus, the delay in switching to this plan cost both parties potential savings.

3. The Panel noted that keeping the PPO, even as a buy-up, was a bureaucratic burden for the Town and a stopgap for bargaining unit members who were “very accustomed” to the PPO.

4. The Union attempted to change the language of the contract by requiring that the parties reach a “mutual agreement” before outside contracting. The concern was that the contract, which simply required that the Town “discuss” with the Union the use of outside contractors, permitted the Town to chip away at Union work.

a. The Panel ruled in favor of the Town. Although the panel acknowledged that the contract’s language could erode Union work “if it is abused,” it had not been abused.

b. In fact, the evidence demonstrated that the provision was rarely used, and in the two instances that it was used, it was due to a lack of qualified applicants, not an attempt to erode Union work.

c. The Panel also disagreed with the Union’s claim that it simply suggested a “minor” change to the contract.

5. With respect to wages, the parties’ last best offers included very similar proposals; in total, approximately $2,000 separated the respected wage packages.

a. Union proposed GWIs for the respective years as follows: 1.80% (retroactive for 2018); 2.00% for 2019; and 1.90% for 2020.

b. Town proposed GWIs for the respective years as follows: 1.75% (retroactive for 2018); 2.00% for 2019; and 1.85% for 2020.

c. The Panel found in favor of the Town for 2018 and in favor of the Union for the remaining years.

6. The bargaining unit involved salaried, not hourly employees, so no step costs were involved.

7. The parties also disagreed as to the time limit for utilizing accrued compensatory time. The Panel accepted the Union’s request to amend the contract to indicate that such time must be used within twelve months of when it is earned, as opposed to six months.

a. The Panel noted that this was neither a cost item for the Town, nor an unreasonable request.

8. Although other bargaining units in the Town received double pay on weekends and holidays, the Union failed to present sufficient evidence justifying a change to the contract in dispute.

VIII. STATE BOARD OF MEDIATION AND ARBITRATION CASE STUDIES.

A. City of West Haven and IAFF, Local 1198, 2018-A-0139 (Aug. 20, 2018) (Pittocco, Ryan, Shea).

1. Union filed a grievance claiming that the City failed to properly staff the shift while two firefighters were conducting fitness testing.

2. City maintained that it did not violate the CBA because twelve firefighters, including those conducting fitness testing, and one paramedic were “on the shift that day” to respond to emergencies.

3. The Panel agreed with the City, noting that the employees involved were all “on duty with a vehicle or vehicles” conducting a training in a town adjacent to West Haven and, therefore, could respond to emergencies if needed.

4. Additionally, the Panel highlighted the fact that the Union grieved a practice that “ha[d] been in existence for quite some time.”

5. Lessons from this case:

a. Always make sure to follow staffing procedures in your CBA.

b. Do not ignore past practice! Although it may, upon reflection, appear to be violative of the agreement, past practice is reliable and can be binding.

B. Town of Berlin and Berlin Middle Management Ass’n, 2017-A-0324 (Aug. 8, 2018) (Murphy, Krzywicki, Mandell).

1. Union filed a grievance claiming that the Town lacked just cause to terminate the grievant notwithstanding his alleged poor judgment, deplorable treatment of employees under his care, and his direct involvement in violations of the Town’s timekeeping and ethics policy.

2. Union challenged arbitrability of its own grievance.

3. The Panel credited the Town’s evidence that the grievant regularly:

a. “[Made] inappropriate comments to employees”;

b. “[U]ndermined the supervisory authority” of another employee;

c. “[I]nstructed [employees under his care] to punch the timecard for other employees, and allowed them to leave work without punching out”; and

d. “[F]acilitated an arrangement whereby his son ultimately did work for the Town, but the grievant assigned some of that work to Town employees.”

4. The Panel concluded that there was just cause for the grievant’s termination. They found that the grievant’s behavior with respect to his son’s contract with the Town was “plainly a most egregious violation” that justified the termination in and of itself. Simply put, his conduct “plainly violate[d] the public trust.”

5. The grievant’s inappropriate comments, improper supervision of employees, and undermining another employee through taunts and name calling further supported the Town’s decision to terminate the grievant.

6. Lessons from this case:

a. Remember that public employees will be held to certain standards with respect to spending public funds.

b. Thorough investigations are critical. Although the employee “regularly” made inappropriate comments to other employees, the Panel predominantly rested its hat on the grievant’s violation of public trust by improperly diverting Town funds. Without a thorough investigation, the Town may not have discovered this information.

C. Town of Manchester and MPOA Local, 2018-A-0162 (Mar. 12, 2019).

1. Police officer case involving unnecessary force.

2. A police officer was found carrying a suspect in an untrained manner, and then punching the suspect once he was handcuffed in the back of a cruiser and kicking the officer.

3. The Panel concluded that there was no unnecessary force.

a. First, the techniques used were reasonable in light of the resistance of the suspect.

b. Second, and most relevant to you, is that the panel provided guidance for how future disciplinary decisions could be sustained:

i. If the Town were to show that the community lost “significant respect and effectiveness” for the grievant; or

ii. The department as a whole “suffered significant loss of faith by its citizenry.”

c. It was established, however, that this officer was highly respected in the community.

d. “Any so-called ‘TV test’ borne of fear of bad press should not be the basis of determining whether an Officer’s performance was acceptable.”

4. Lessons from this case:

a. Make sure to not rely solely on the behavior of an employee during the one incident, but look at a totality of how that behavior affected the department and the perception of it.

b. Do not ignore the grievant’s past performance and work history—positive work history can work against you in any disciplinary proceeding.

IX. RECENT STATE BOARD OF LABOR RELATIONS CASE STUDIES.

A. Town of Darien and Darien Police Association (March 7, 2019) (Battey, Collins, Bird) (SBLR Decision No. 5051).

1. Darien Police Association claimed that the Town violated its duty to bargain in good faith under MERA when it:

a. Unilaterally reassigned bargaining unit members from the Communications Center (dispatch), thus causing changes in the major terms and conditions of employment; and

b. Repudiated a prior agreement based on “bad faith” and a “frivolous” interpretation of the agreement.

2. Dispatch had been operated for many years by police officers, but there was a push to hire civilian dispatchers. Union was on notice for many years that the police department’s administration sought a “fully” civilized dispatch.

3. The Union argued:

a. The absence of a bargaining unit member from dispatch impacted employee health and safety because backup personnel would not be timely dispatched by civilian personnel, who were unfamiliar with police procedures.

b. The Town’s unilateral reassignment created extra work for police supervisors and lost work for others.

c. The Town breached a prior agreement by hiring additional civilian dispatchers.

4. The Board rejected the Union’s arguments because (1) civilian dispatchers could be properly trained, (2) there was insufficient evidence to show an impact on workload, and (3) the Town’s interpretation of the agreement was plausible.

5. Lessons from this case:

a. Secondary results of managerial discretion, here, employee reassignment, will be “bargainable” if they “amount to changes in major terms and conditions of employment.”

b. Generally, agreements will not be repudiated when a party advances a plausible interpretation.

B. Southeast Area Transit District and Amalgamated Transit Union, Local 1209 (March 22, 2019) (Battey, Collins, Carter) (SBLR Decision No. 5056).

1. Union claimed that Transit District bargained in bad faith, and thus violated MERA, by failing to abide by the terms of a prohibited practices settlement agreement by not timely providing certain items associated with a bargaining unit member’s motor vehicle accident.

a. The prohibited practices settlement agreement required the Transit District to “reply to future Union requests for information within three weeks.”

2. The Transit District issued a written warning to a member of the Union, a bus driver, after he hit a pedestrian with a bus.

3. The Union grieved the written warning, claiming that it was without just cause.

4. During the Union’s investigation into the accident, it requested various documents from the Transit District, including names of witnesses, access to the bus driven by the employee, and a reenactment video.

5. The Board dismissed the complaint. Union did not prove that the Transit District failed to turn over relevant information that was actually in the Transit District’s possession at the time of a written reprimand.

6. Lessons from this case:

a. Obligation to provide “relevant information” to the Union is part of the statutory duty to bargain in good faith – “part of this obligation is to furnish the information requested in a timely manner.”

b. Obligation only applies to information actually in a party’s possession.

c. Failing to comply with a prohibited practice settlement agreement can constitute a breach of the duty to bargain in good faith.

C. City of New Haven and Local 3144 of Council 4, AFSCME, AFL-CIO (April 1, 2019) (Battey, Collins) (SBLR Decision No. 5061).

1. AFSCME claimed that the City violated MERA when it harassed and retaliated against the Union president after she engaged in protected activities.

2. The Union president, a security analyst, had a history of clashing with other employees from the City and the Board of Education.

3. Basis of the claim was that School Board “manufactured” its decision to expel the Union president’s son, after he allegedly e-mailed a bomb threat to a teacher, due to the Union president’s activities as Union president.

a. Police found probable cause to arrest the son.

4. The City conceded that the Union president had engaged in protected activity by representing City employees.

5. Panel concluded that the City had knowledge of those activities, and that some evidence may support an inference of anti-union animus.

Note: The Board sidesteps the fact that Board of Education employees commenced the expulsion proceedings, not City employees. It reasoned that “statutory independence for purposes of collective bargaining under the Act . . . Does not require us to ignore the realities of the relationship between the City and its School Board, nor does it preclude a finding that [a school employee] acted as an agent of the City in the context of this case.”

6. Nonetheless, the Board dismissed the complaint, reasoning that the City proved an affirmative defense.

a. School Board employees reasonably believed that Union president’s child sent the bomb threat, which required suspension and expulsion recommendation under student handbook, so they would have pursued expulsion regardless of the Union president’s actions.

7. Lessons from this case:

a. Prima facie case of protected activity discrimination includes: (1) employee engaged in protected activity; (2) the employer was aware of the activity; and (3) the employer harbored anti-union animus.

b. Once established, employer may prove an affirmative defense – “would have pursued its course of conduct regardless of any anti- union motivation.”

c. Concerns about agents acting on your behalf?

X. RECENT CONNECTICUT SUPREME COURT CASE.

A. Board of Education of the Town of New Milford v. New Milford Education Association (SC 20140) (April 30, 2019).

1. Union filed a grievance based on its claim that the Board violated the parties’ CBA when it improperly extended the teacher work day and scheduled an excessive number of evening events.

2. An arbitrator found in favor of the Union, and the Board filed an application to vacate the grievance arbitration award with the trial court, which was denied.

3. Board sought to overturn the trial court’s decision, arguing that:

a. The arbitrator manifestly disregarded the law by concluding that the Union’s grievance was not precluded by a prior interest arbitration decision.

Note: In a prior interest arbitration, a panel of arbitrators eliminated “abbreviated student school days” and required six evening meetings per year.

b. The arbitrator incorrectly concluded that the grievance was arbitrable.

4. The Supreme Court upheld the trial court’s ruling.

a. The Board failed to prove that the arbitrator manifestly disregarded the law, in violation of C.G.S. § 52-418, by not applying res judicata or collateral estoppel.

i. “[T]he interest arbitration decided the language of the agreement between the parties, whereas the grievance arbitration decided whether the [B]oard had violated the terms of the agreement.”

ii. “[T]he interest arbitration panel did not address the subject of the union’s grievance but, instead, recognized that those issues would need to be decided in the future.”

b. Because the grievance involved the interpretation and application of the CBA, the trial court correctly determined that the dispute was arbitrable.

i. The parties’ CBA did not expressly submit the issue of arbitrability to the arbitrator, so a court could review the arbitrability issue if the Board preserved it and did not waive it.

ii. “[W]e reject the Union’s claim that, by merely submitting the question of arbitrability to the arbitrator, without more, the [B]oard

waived its right to judicial review.”

5. Lessons from this case:

a. Remember that grievance arbitration decisions can be appealed to court under limited circumstances. This is a heavy burden.

b. Do not forget about raising arbitrability early and often!

XI. CONCLUSIONS AND QUESTIONS.

Kevin M. Roy Partner

P (860) 251-5162 / F (860) 251-5215 [email protected]

Kevin Roy represents public sector clients with respect to the full complement of labor and employment matters, including contract negotiations, interest arbitration, contract administration issues, grievance arbitration cases, prohibited practice proceedings, administrative appeals of decisions of the State Board of Labor Relations filed in Superior Court, and applications to vacate arbitration awards filed in Superior Court.

Kevin counsels municipal and board of education employers with respect to a wide variety of employment law issues including the pre-employment hiring process and application issues, personnel policies and practices, disciplinary issues, termination and separation matters, Freedom of Information Act issues and complaints, PRACTICE AREAS military leave, leave issues, unemployment compensation, and workers’ compensation matters. • Colleges and Universities • Employment Law EDUCATION • Labor Relations • Labor, Employment and Benefits • Public Schools • Western New England University School of Law J.D., 2003, cum laude • School Law • University of Massachusetts B.A., 2000 • Johnson & Wales University A.A.S., 1997, summa cum laude

BAR ADMISSIONS

• Connecticut

DISTINCTIONS

• Listed as a Connecticut Super Lawyer Rising Star®: Employment & Labor; 2010-2012 • Connecticut Bar Foundation: James W. Cooper Fellow

TEACHING POSITIONS

• Western New England College School of Law: Adjunct Professor, Negotiations, Mediation, and Arbitration

PROFESSIONAL AFFILIATIONS

• American Bar Association • Connecticut Bar Association • Connecticut School Attorneys Association • Labor & Employment Relations Association • Connecticut Public Employer Labor Relations Association • National Gay and Lesbian Bar Association • National Public Employer Labor Relations Association • Connecticut Conference of Municipalities • International Public Management Association for Human Resources

Thadius L. Bochain Associate

P (860) 251-5705 / F (860) 251-5315 [email protected]

Thadius Bochain is a member of the firm's School Law Practice Group and advises public school districts on a variety of general education issues.

Prior to joining Shipman & Goodwin, Thadius served as a law clerk for the Honorable Douglas S. Lavine of the Connecticut Appellate Court and as a law clerk for the Connecticut Superior Court. While in law school, he worked as a legal intern for the Office of the State's Attorney and the Connecticut Attorney General's Office.

EDUCATION PRACTICE AREAS

• University of Connecticut School of Law J.D., 2015, with honors • Labor, Employment and Benefits • Quinnipiac University B.A., 2011 magna cum laude • Public Schools • School Law DISTINCTIONS

• CALI Excellence Awards: Lawyering Process II; Legislative Process; Criminal Appellate Clinic • Connecticut Journal of International Law, Articles Editor • Connecticut Bar Association, Young Lawyers Section: Law School Liaison

COMMUNITY INVOLVEMENT

• Lawyers Without Borders: Former Graduate Fellow/Volunteer • Fred D. Wish School Volunteer Tutor Program • Lawyers’ Collaborative for Diversity Mentorship Program

NOTES

53 DCF Reporting: Changes on the Horizon for Connecticut Public Schools?

Natalia Sieira Millan Lauren A. Cullen

DCF REPORTING: Changes on the Horizon for Connecticut Public Schools

Natalia Sieira Millan Lauren A. Cullen

I. OVERVIEW OF THE CURRENT LAW.

A. Origins of Current Law.

B. Who Is a Mandated Reporter?

C. When to Report?

D. Changes to Address Educator Misconduct.

E. Mechanics of Reporting.

F. What if I Fail to Report?

II. LAST YEAR’S STATUTORY CHANGES.

A. Public Act 18-57.

1. Eliminated good faith immunity for decision not to report.

B. Public Act 18-67.

2. Enabled DCF to run a pilot program to allow certain categories of initial reports of suspected abuse or neglect to be made electronically.

C. Public Act 18-17.

3. Added “licensed behavior analysts” to the list of individuals mandated to report to the Commissioner of Children and Families.

D. Public Act 18-96.

4. Added “licensed behavior analysts” to the list of individuals required to report to the Commissioner of Social Services.

III. DCF CHANGES ON THE HORIZON (PROPOSED LEGISLATION).

A. Senate Bill 891.

1. Requires DCF to notify Superintendent of findings related to the investigation of a failure to or delay in reporting.

B. Senate Bill 929.

2. Adds as a mandated reporter anyone who has regular contact with children pursuant to a contract or credential issued by DCF. Changes the number of days for the department to complete its investigation from 45 calendar days to 33 business days.

C. Senate Bill 6998.

3. Expands DCF’s notification requirements to include notification to public and private schools when an employee of a school contractor is the subject of an abuse or neglect complaint. Specifies “records” to include only those allowable by law.

IV. OTHER PROPOSED LEGISLATION.

A. Senate Bill 453.

1. Creates an independent ombudsman office within the Office of Governmental Accountability to receive and respond to complaints regarding services by DCF or its contractors.

B. Proposed Bill No. 5780.

1. Requires DCF to reimburse a town for the educational cost of each nonresident student the department places in the school district for such town.

C. Proposed House Bill 6602.

1. Requires the Commissioner of Children and Families to check with a school district before placing a student in such school district.

D. Substitute Senate Bill No. 1069.

1. Requires the Department of Education to update the school health education curriculum to include human trafficking and commercial sexual exploitation by January 1, 2020.

E. Proposed Bill No. 6183.

1. Requires the Department of Emergency Services to establish and publicize a registry of individuals who reside in Connecticut and have been convicted of a crime involving child abuse or neglect. A victim may petition the court to have his or her name removed from the registry.

Natalia Sieira Millan Associate

P (860) 251-5250 / F (860) 251-5315 [email protected]

Natalia Sieira Millan is a member of the firm's School Law Practice Group, where she advises public school districts on a variety of general education issues.

Prior to joining the firm, Natalia was the Assistant Agency Legal Director with the Connecticut Department of Children and Families and an associate at a regional law firm. While in law school, she served as a law clerk in the State of Connecticut Superior Court, Stamford-Norwalk Judicial District, Civil Division.

EDUCATION PRACTICE AREAS • Quinnipiac University School of Law J.D., 2011 • Boston University B.A., 2008 • Labor, Employment and Benefits • Public Schools • School Law BAR ADMISSIONS

• Connecticut • New York

COURT ADMISSIONS

• U.S. District Court, District of CT

TEACHING POSITIONS

• University of Connecticut: Adjunct Professor, Neag School of Education

PROFESSIONAL AFFILIATIONS

• American Bar Association • Connecticut Bar Association: Young Lawyers Section

COMMUNITY INVOLVEMENT

• The Family and Children's Agency: Junior Board of Directors • Connecticut Association of Community Health Workers: Pro Bono Attorney

• Jackie Robinson Park of Fame, Inc.: Board of Directors; Pro Bono Attorney • Students Opposing Slavery: Connecticut Chapter Leader • Inspirica • Shelter for the Homeless • Starfish Connection: Volunteer Translator

Lauren A. Cullen Associate

P (860) 251-5613 [email protected]

Lauren Cullen is an associate in the firm's School Law Practice Group, where she advises public school districts on a variety of general education issues.

Prior to joining Shipman & Goodwin, Lauren was an associate at a major New York City law firm. While in law school, she was a summer associate at a New York City law firm and a pro bono scholar at the New York Lawyers for the Public Interest.

Admitted only in New York. Supervision by partners of the firm admitted to the Connecticut Bar. PRACTICE AREAS

EDUCATION • Labor, Employment and Benefits • Public Schools • Columbia University School of Law J.D., 2018 • School Law • Colgate University B.A., 2014, summa cum laude

BAR ADMISSIONS

• New York (only)

DISTINCTIONS

• Hamilton Fellowship (merit-based full-tuition scholarship) • Harlan Fiske Stone Scholar • Kirkland & Ellis Diversity Scholar • Moot Court Student Editor • Columbia Journal of European Law, Articles Editor • Charles A. Dana Scholar • Colgate University Dean's Award for Academic Excellence

NOTES

62 Independent Medical Examinations and the ADA Interactive Process

Leander A. Dolphin Peter J. Murphy Gregory A. Jones

INDEPENDENT MEDICAL EXAMINATIONS AND THE ADA INTERACTIVE PROCESS

Leander Dolphin Peter Murphy Greg Jones

I. THE AMERICANS WITH DISABILITIES ACT.

A. Introduction.

1. The Americans with Disabilities Act (“ADA”) was enacted in 1990 and codified as 42 U.S.C. § 12101 et seq. It was modeled after the Civil Rights act of 1964 and the Rehabilitation Act of 1973.

2. The ADA Amendments Act took effect on January 1, 2009.

a. The ADA Amendments Act’s stated intent: “To restore the intent and protections of the Americans with Disabilities Act of 1990.”

b. The ADA Amendments Act rejected the holdings of several United States Supreme Court decisions that limited the scope of the ADA’s applicability. The ADA Amendments Act also reversed portions of the EEOC’s regulations. The effect of these changes was to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

c. The ADA Amendments Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

3. The ADA governs almost every entity operating in the United States.

a. Title I applies to employers, both public and private.

b. Title II applies to “public services,” i.e., state and local governments.

c. Title III applies to all places of “public accommodations.” 1

1 Places of “public accommodation” includes independent schools and private colleges.

4. Title I is enforced by the Equal Employment and Opportunities Commission (“EEOC”), and Titles II and III are enforced by the Department of Justice Civil Rights Division.

5. Title I of the ADA applies to all employers, regardless of whether or not they receive federal funds.

a. The ADA does not apply to “religious organizations or entities controlled by religious organizations.”

B. Who is protected under the ADA?

1. Any person who has a “disability.”

2. The statute defines a “disability” as follows:

a. A physical or mental impairment that substantially limits one or more major life activities of such individual;

b. A record of such an impairment; or

c. Being regarded as having such an impairment.

3. “Substantially limits” is not a high bar.

a. “An impairment is a disability...if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”

b. Impairment need not prevent or significantly/severely restrict a major life activity.

4. “Major life activities” include, but are not limited to, the following:

a. Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

5. “Major life activities” also includes bodily functions, including, but not limited to, the following:

a. Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

6. The ADA also protects those people having a record of an impairment, but who may not currently have a physical or mental impairment.

a. This group includes those people who have recovered from an impairment, such as those with a history of mental or emotional illness, drug addiction, alcoholism, heart disease, or cancer.

b. It also includes people who were misclassified as having an impairment, such as someone who was erroneously diagnosed as mentally ill.

7. An individual will be “regarded as having such an impairment” subject to the protection of the ADA, if the individual “establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical impairment whether or not the impairment limits or is perceived to limit a major life activity.”

a. Reasonable accommodations are not required for an individual who qualifies under the ADA solely on the basis that he or she is “regarded as” having a disability.

8. An impairment that is in remission or is episodic is still considered a “disability” if its reoccurrence would substantially limit a major life activity.

9. In determining whether an individual has a qualifying disability, an employer cannot take into consideration any types of ameliorative effects or mitigating measures such as medication, medical supplies, equipment, etc. An employer may, however, take into account the ameliorative effects of eyeglasses or contact lenses in determining whether an impairment substantially limits a major life activity. 42 U.S.C. § 12102(4)(E)(ii).

10. Certain conditions, however, are not impairments:

a. Homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs. 2

C. What actions are prohibited against an employee with a disability?

2 Note that marijuana, despite state legislation to the contrary in certain jurisdictions, is still an “illegal drug” under federal law, and, therefore, its use is not covered under the ADA.

1. An employer cannot discriminate against a “qualified individual” on the basis of a disability in hiring, advancement, discharge, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112.

2. A “qualified individual” is someone who, with or without a reasonable accommodation, can perform “the essential functions of the job.”

3. “Discrimination” is defined very broadly within the statute to include:

a. Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.

b. Participating in a contractual or other arrangement or relationship that has the effect of subjecting a qualified applicant or employee with a disability to discrimination (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);

c. Utilizing standards, criteria, or methods of administration:

i. That have the effect of discrimination on the basis of disability; or

ii. That perpetuate the discrimination of others who are subject to common administrative control;

d. Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association;

e. Not making reasonable accommodations for the known physical or mental limitations of an otherwise-qualified individual with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;

f. Denying employment opportunities to a job applicant or employee who is an otherwise-qualified individual with a disability, if such denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

g. Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria is shown to be job-related for the position in question and is consistent with business necessity; and

h. Failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

4. Generally, the ADA requires:

a. Reasonable accommodations to otherwise qualified employees and applicants with disabilities;

b. Auxiliary aids and services necessary for effective communication and program access; and

c. Reasonable modifications of policies, practices and procedures.

5. The ADA does not require, however, that the employer provide personal services and devices, such as wheelchairs, glasses, hearing aids, etc.

II. THE INTERACTIVE PROCESS.

A. Generally.

1. The employee must notify the employer of the disability and request an accommodation (i.e., the disability must be known to the employer).

a. The employee need not specifically use the term “accommodation” to request a reasonable accommodation.

b. The request does not even need to be in writing.

c. The employee only needs to indicate that a condition is adversely impacting his/her performance.

2. The employer must provide a reasonable accommodation unless it can show that the accommodation would “impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).

3. The accommodation must be reasonable.

a. The employer is not obligated to provide any and all accommodations. Indeed, the accommodation does not even need to be the employee’s preferred accommodation, so long as it is effective.

4. The employer is not required to grant the request for accommodation immediately.

5. Whether an accommodation imposes an “undue hardship” on the employer requires an evaluation of the nature of the accommodation.

a. The employer is not required to “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.” 28 C.F.R. § 36.302(a).

B. Commencing the Interactive Process.

1. Once an employee indicates that his/her disability is adversely affecting work performance, the employer must engage in an “interactive process.” 29 C.F.R. § 1630.2(o)(3).

2. The conversation should include, at a minimum, the following:

a. How the disability may be affecting work performance;

b. Work expectations; and

c. Reasonable accommodation(s) that may improve the employee’s work performance.

3. Consider inquiring into the following:

a. What limitations is the employee experiencing?

b. How do these limitations affect the employee and the ability to perform the essential functions of the position?

c. What specific job tasks are impacted as a result of the limitations?

d. What reasonable accommodations are available to permit the employee to complete the essential functions of the position?

4. The employer must make individual determinations regarding specific requested accommodations.

5. While engaging in the interactive process, employers should be aware that anything that is said in that process can and will be used against them. The goal is to have a productive discussion, and not to pre-judge or silence the employee.

6. The best practice is to listen, ask questions, and then take some time to consider the options before making any decisions.

7. Be sure to document all the steps taken in the process.

8. Once accommodations are in place, consider meeting with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed.

C. What is the employer entitled to know?

1. When an accommodation is requested, an employer has a right know:

a. Whether the employee has a qualifying disability;

b. Nature of the disability and limitations; and

c. Need for an accommodation. 29 C.F.R. § 1630.14(c).

2. Any information obtained through the course of the interactive process must be kept confidential. 42 U.S.C. § 12112(d)(4). Any documentation must be maintained on separate forms and maintained in separate medical files. 42 U.S.C. § 12112(d)(3)(B).

3. Only those people on a “need to know” basis need to be informed of the nature of the disability and/or accommodation(s).

a. Immediate supervisors, human resources, and safety/security personnel (as necessary).

4. Only co-workers directly impacted by the accommodation should be told that there will be a change, but they do not need to be told why.

III. INDEPENDENT MEDICAL EXAMINATIONS AND DISABILITY-RELATED INQUIRIES.3

A. Under what circumstances can employers make disability-related inquiries or request an independent medical examination?

1. Different rules apply at different stages of an employee’s career:

a. Pre-employment:

i. The ADA prohibits pre-offer disability-related inquiries.

ii. The ADA prohibits pre-offer medical examinations.

b. After an employee is given a conditional job offer, but prior to performing work:

i. The employer can condition employment on a medical exam provided the following are present:

(i) All entering employees are subject to such an examination regardless of disability;

(ii) Information obtained is stored on separate forms, in separate files, and treated as confidential (barring certain exclusions, such as need-to-know persons and emergency personnel); and

(iii) The information is not used for a discriminatory purpose. 42 U.S.C. §§ 12112 (d) (2), (3).

c. During employment:

i. An employer may not require a medical examination and may not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job- related and consistent with business necessity.

2. What is “job related and consistent with business necessity?”

3Note that this presentation only examines Independent Medical Evaluations (IME) under the ADA. Although the Family Medical Leave Act, 29 U.S.C. 2601 et seq. authorizes independent medical examinations, the FMLA has different requirements and procedures that are not addressed in this outline.

a. When the employer has a reasonable belief, based on objective evidence, that:

i. An employee’s ability to perform the essential job functions is or will be impaired by a medical condition; Rosenquist v. Ottaway newspapers, Inc., 90 Fed. Appx. 564, 565 (2d Cir. 2004); or

ii. An employee will pose a direct threat due to a medical condition. 29 C.F.R. § 1630.2(r).

b. A “reasonable belief” can be based on what an employer knows about a particular employee's medical condition or an employer’s observations of performance problems, which they reasonably attribute to the medical condition.

c. Factors to consider in determining whether the information from a third party is reliable are:

i. The relationship of the person providing the information to the employee about whom it is being provided;

ii. The seriousness of the medical condition at issue;

iii. The possible motivation of the person providing the information;

iv. How the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else); and

v. Other evidence that the employer has that bears on the reliability of the information provided.

d. When an employee requests a reasonable accommodation, the employer is free to request documentation regarding the disability, or request more documentation than that originally provided if it is not sufficient.

i. The employer cannot, however, request documentation that is not related to the disability or accommodation request. For example, an employer cannot ask for all medical records, because most of the information is not likely related to the disability at issue.

ii. Documentation is sufficient if it:

(i) Describes the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and,

(ii) Substantiates why the requested reasonable accommodation is needed.

iii. If an employee provides sufficient documentation, it can be discriminatory/retaliatory to request further documentation or request an independent medical examination.

iv. Documentation is insufficient if it does not specify the disability and/or explain the need for the accommodation.

3. What is a “direct threat?”

a. A “direct threat” is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2 (r).

b. To determine if there is a “direct threat,” employers must:

i. Perform an “individualized assessment” of the employee’s ability to “safely perform the essential functions of the job,”

ii. Base that determination on “reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence,” and

iii. Examine several factors, including:

(i) The duration of the risk,

(ii) The nature and severity of the potential harm,

(iii) The likelihood that the potential harm will occur, and

(iv) The imminence of the potential harm.

B. What constitutes a Disability-Related Inquiry or an Independent Medical Examination?

1. What questions are considered a “disability-related inquiry?”

a. Asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee's disability;

b. Asking an employee to provide medical documentation regarding his/her disability;

c. Asking an employee's co-worker, family member, doctor, or another person about an employee's disability;

d. Asking about an employee's genetic information;

e. Asking about an employee's prior workers' compensation history;

f. Asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee's taking of such drugs or medications; and,

g. Asking an employee a broad question about his/her impairments that is likely to elicit information about a disability. (e.g., what impairments do you have?)

2. In contrast, the EEOC has identified certain questions that are not disability related, and, therefore, not prohibited. Examples include:

a. Asking generally about an employee's wellbeing (e.g., how are you?), asking an employee who looks tired or ill if he/she is feeling okay, asking an employee who is sneezing or coughing whether he/she has a cold or allergies, or asking how an employee is doing following the death of a loved one or the end of a marriage/relationship;

b. Asking an employee about non-disability-related impairments (e.g., how did you break your leg?)

c. Asking an employee whether he/she can perform job functions;

d. Asking an employee whether he/she has been drinking;

e. Asking an employee about his/her current illegal use of drugs;

f. Asking a pregnant employee how she is feeling or when her baby is due; and,

g. Asking an employee to provide the name and telephone number of a person to contact in case of a medical emergency.

3. What is a “medical examination?”

a. In general, it is “a procedure or test that seeks information about an individual’s physical or mental impairments or health.”

4. “Medical examinations” include, but are not limited to:

a. Vision tests conducted and analyzed by an ophthalmologist or optometrist;

b. Blood, urine, and breath analyses to check for alcohol use;

c. Blood, urine, saliva, and hair analyses to detect disease or genetic markers (e.g., for conditions such as sickle cell trait, breast cancer, Huntington's disease);

d. Blood pressure screening and cholesterol testing;

e. Nerve conduction tests (i.e., tests that screen for possible nerve damage and susceptibility to injury, such as carpal tunnel syndrome);

f. Range-of-motion tests that measure muscle strength and motor function;

g. Pulmonary function tests (i.e., tests that measure the capacity of the lungs to hold air and to move air in and out);

h. Psychological tests that are designed to identify a mental disorder or impairment; and,

i. Diagnostic procedures such as x-rays, computerized axial tomography (CAT) scans, and magnetic resonance imaging (MRI).

5. Certain “tests,” however, are not considered “medical examinations,” such as:

a. Tests to determine the current illegal use of drugs;

b. Physical agility tests, which measure an employee's ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee's performance of physical tasks, such as running or lifting, as

long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure);

c. Tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;

d. Psychological tests that measure personality traits such as honesty, preferences, and habits; and,

e. Polygraph examinations.

IV. INDEPENDENT MEDICAL EXAMINATIONS IN THE COURTS.

A. Employer properly relied on IME results to take adverse employment action.

1. In Rosenquist v. Ottaway Newspapers, Inc., 90 F. App'x 564 (2d Cir. 2004), a reporter had a ruptured brain aneurysm that caused him to suffer a debilitating stroke, resulting in, among other things, diminished cognitive function and speech ability.

2. After a long hospitalization and intensive rehabilitation, the reporter applied for reinstatement to his former position and provided the employer with a letter from his own physician indicating that the doctor would not object to the reporter returning to work, but did not opine on the reporter’s ability to do the particular job he sought.

3. The employer asked the reporter to undergo an independent medical examination to determine whether he was capable of performing the essential functions of the political reporting job (the only reporting job arguably open). When the IME neurologist determined that the reporter was unable to perform the essential functions of the job, with or without reasonable accommodations, the employer informed him that he could not return as a reporter.

4. The reporter filed an action arguing that the IME was an unlawful medical inquiry and prohibited by the ADA. The court rejected this argument and concluded that the defendant's decision to require an IME was justified by business necessity.

a. “Because Rosenquist had suffered an aneurysm with obvious effects on speech, defendant had reason to doubt his abilities to perform the essential functions of a reporter. Insofar as Rosenquist contends that the defendant's failure to reinstate him constituted discrimination based on disability, the plaintiff has not adduced enough evidence to permit a jury to find that the defendant did not act in good faith in selecting the independent medical

examiner, in providing him with a description of the political reporter position, and in crediting the examiner's conclusion that, at the relevant time, plaintiff was incapable of performing the essential functions of his former job, with or without reasonable accommodation.”

B. Employee did not have the right to dictate the terms of the IME.

1. In Bustillo-Formoso v. Million Air San Juan Corp., 261 F. Supp. 3d 201 (D.P.R. 2016), aff'd, 691 F. App'x 1 (1st Cir. 2017), the employee was an airline pilot who was re-assigned to a different type of airplane, allegedly due to his age.

2. Employee filed an age discrimination charge, claiming that he had “suffered ‘damages, suffering, and mental anguish’ ” and that such allegations were “extremely serious and worrisome for the industry in which [they] work, where [they] have to maintain at all times the safety of [the] passengers.”

3. The airline assigned him to a new plane, but, before he could begin, required that he undergo an IME. The plaintiff claimed that this was retaliation for filing the age discrimination claim.

4. After the employee refused to undergo the IME, the airline fired him.

5. The district court rejected the employee’s ADA claim, finding that airplane pilots work in positions that affect public safety, that a pilot is prohibited from flying if he is suffering from a mental or physical condition that would disqualify him to fly, that a medical examination to ensure a pilot is fit to fly is “directly related” to the job, and that employers of pilots (like Million Air) are responsible for ensuring that their pilots are fit to fly.

6. The court also found that the attorney’s attempt to impose limitations on the information shared from the IME was without merit.

C. Employer’s valid reason for IME defeated retaliation claim.

1. In Cherkaoui v. City of Quincy, 877 F.3d 14 (1st Cir. 2017), the plaintiff was a Spanish teacher who converted to Islam in 1998. In April 2009 she began wearing a religious headscarf to work.

2. Plaintiff claimed that she then began to suffer a hostile work environment due to her religion and was subjected to discipline by the school district. Plaintiff filed a discrimination complaint with the EEOC.

3. After filing her claim, the plaintiff was suspended for tardiness issues, but did not return to work after the suspension or for the rest of the 2009–2010 academic

year--which exhausted her accrued sick leave. She alleged that her failure to return to work was due to her ADHD, and applied for extended sick leave. Under the applicable CBA the district had the ability to request an IME.

4. After Plaintiff underwent the IME and was deemed unable to return to work, she was awarded extended sick leave benefits. Plaintiff then amended her EEOC charge to include the school district’s request for an IME as an additional instance of retaliation prohibited by the ADA.

5. The court rejected Plaintiff’s retaliation claim, finding that the CBA gave the school district a valid basis on which to send her for an IME, and she returned to work following the results of the IME.

IV. CONCLUSIONS AND QUESTIONS.

Leander A. Dolphin Partner

P (860) 251-5086 / F (860) 251-5315 [email protected]

Leander A. Dolphin is a member of the firm’s seven-person Management Committee.

Leander is a partner in the firm's School Law practice group and represents public school districts, independent schools, and colleges and universities in education and employment matters, including student discipline, sexual harassment (Title IX) matters, disability-related matters, employee discipline and discharge, special education disputes, and investigations. In addition, she represents clients in claims before state and federal courts and administrative agencies. Leander also represents private and non-profit clients in employment litigation matters, and provides counseling in employment law to clients in both the private and public sectors. PRACTICE AREAS

Leander previously served as Vice President, HR & General Counsel at Girl • Colleges and Universities Scouts of Connecticut, developing an HR infrastructure and assisting the • Employment Law • organization in navigating various corporate, real estate, contractual, and Employment Litigation • Independent Schools employment issues to successful results. Leander has conducted numerous • Labor, Employment and Benefits professional development workshops for private and public sector clients on topics • Public Schools such as sexual harassment, bullying, special education, disability discrimination, • School Law and confidentiality issues. EDUCATION

• Howard University School of Law J.D., 2004 • Wesleyan University B.A., 1999, high honors

BAR ADMISSIONS

• Connecticut

COURT ADMISSIONS

• U.S. District Court, District of CT

DISTINCTIONS

• Listed as a Connecticut Super Lawyer Rising Star®: Schools & Education (2013-2017) • American Bar Foundation: Fellow

• Connecticut Bar Foundation: James W. Cooper Fellow • National Bar Association: "40 Under 40 Nation's Best Advocates" Award (2017) • New Leader in the Law, Connecticut Law Tribune (2014) • Lawyers of Color's Hot List (2014) • Lawyers of Color - High Achievers, Connecticut Law Tribune (2011) • 100 Women of Color Awards 2017 • Howard Law Journal, Executive Solicitations Editor

TEACHING POSITIONS

• Quinnipiac University School of Law: Adjunct Professor, Education Law

PROFESSIONAL AFFILIATIONS

• American Bar Association: Litigation; Young Lawyers • Connecticut Bar Association: Labor & Employment Section • National Bar Association: Commercial Law Section • National School Boards Association: Council of School Attorneys • Connecticut School Attorneys Council • National Association of College and University Attorneys • George W. Crawford Black Bar Association: Member, Board of Directors (2007-2008); Secretary (2005- 2007)

COMMUNITY INVOLVEMENT

• The Ethel Walker School: Board of Trustees • The Governor's Prevention Partnership: Board Member (2012-present) • The Lawyer's Collaborative for Diversity, Inc. (LCD): Associates Advisory Committee • Hartt School for Performing Arts: Board of Trustees (2010-2013) • Girl Scouts of Connecticut: Fund Development Committee (2009-2010); Girl Scouts of the USA: National Delegate (Girl Scouts of Connecticut Delegation) (2008) • Fred D. Wish School Volunteer Tutor Program (2004-2007)

Peter J. Murphy Partner

P (860) 251-5950 / F (860) 251-5316 [email protected]

Peter Murphy counsels private employers and non-profit organizations daily on the full range of issues affecting their workplaces, including:

• wage-and-hour issues; • employee discipline, termination, and performance management; • disability accommodations, FMLA compliance, and sick leave; • contract negotiations, administration, and management; • compliance with state and federal laws and regulations; • drafting and updating workplace policies and handbooks. PRACTICE AREAS Peter helps employers mitigate risk and improve workplace conditions by providing preventative trainings on topics such as sexual harassment prevention, • Colleges and Universities professionalism in the workplace, FMLA compliance, navigating leave issues, and • Employment Law legal overviews for supervisors. In addition, he conducts investigations into alleged • Employment Litigation incidents of discrimination, harassment, and misconduct in the workplace. When • Health Care Labor, Employment and employers are sued, Peter provides pragmatic and effective representation before Benefits state and federal courts as well as administrative agencies such as the Department • Independent Schools of Labor, the Connecticut Commission on Human Rights and Opportunities, and • Labor Relations the Equal Employment Opportunity Commission, and in arbitrations conducted by • Labor, Employment and Benefits the American Arbitration Association. • Public Schools • School Law Peter also represents both public and independent schools in education and employment matters, including policy development, compliance with state and federal education laws, student discipline and confidentiality issues, and employee discipline and discharge. He has extensive experience litigating cases for public and independent schools on a variety of issues, including:

• tenure and denial of promotion; • constitutional claims brought by students and employees; • discrimination claims brought by current and former employees; • appeals of awards in administrative hearings under the FOIA, the IDEA, and other educational statutes; • wrongful termination claims; • contractual claims made by third parties; • arbitrations under collectively bargained agreements and appeals of such awards to court.

Peter currently serves as a fact-finder, arbitrator, and attorney trial referee in the Connecticut Superior Court, and as a Contributing Editor for the nationally distributed Litigation News magazine published by the American Bar Association.

He is the current chair of the Hartford Hospital Young Leaders Advisory Council, an executive committee member of the Connecticut Bar Association’s Labor & Employment Section, and serves on the boards of several non-profit organizations in the Hartford area. Peter served for several years as an adjunct professor for the first-year Moot Court class at the University of Connecticut School of Law. He was also a member of the Criminal Justice Act panel for the United States District Court in Connecticut. Prior to joining Shipman & Goodwin, Peter served as a law clerk to the Honorable Flemming L. Norcott, Jr., of the Connecticut Supreme Court, and to the Honorable Christopher F. Droney of the United States District Court for the District of Connecticut.

EDUCATION

• University of Connecticut School of Law J.D., 2003, with honors • Fairfield University B.A., 1997

BAR ADMISSIONS

• Connecticut • Massachusetts

COURT ADMISSIONS

• U.S. Court of Appeals for the Second Circuit • U.S. District Court, District of CT • U.S. District Court, District of MA

DISTINCTIONS

• Listed as a Connecticut Super Lawyer®: Employment Litigation: Defense (2015-2018) • Listed as a Connecticut Super Lawyer Rising Star®: Employment Litigation: Defense (2013-2014), Schools & Education (2010-2012) • ABA Litigation Section Litigation News, Contributing Editor • 40 Under Forty, Hartford Business Journal (2014) • O'Connell, Flaherty & Attmore Scholar; First-Year Honors Program • Sarah N. Cohen and Elizabeth S. Bossler Scholarship • Class of 1970 Scholar • Connecticut Law Review, Articles Editor

TEACHING POSITIONS

• University of Connecticut School of Law: Former Adjunct Professor, Moot Court

PROFESSIONAL AFFILIATIONS

• American Bar Association: Labor and Employment Law Section; Litigation Section

• Connecticut Bar Association: Labor & Employment Law Section, Executive Committee Member; Young Lawyers Section; Co-Chair, Federal Practice Committee (2008-2009) and Co-Chair, Education Law Committee (2010-2012) • Hartford County Bar Association • Human Resources Association of Central Connecticut • National Association of College and University Attorneys

COMMUNITY INVOLVEMENT

• Hartford Youth Scholars Foundation: Board Member • Key Human Services, Inc.: Board Member • Hartford Hospital Young Leaders Advisory Council: Chair • Emanuel Lutheran Church (Hartford, CT): Council Member • West Hartford Youth Hockey: Coach

Gregory A. Jones Associate

P (860) 251-5013 / F (860) 251-5215 [email protected]

Gregory Jones is an associate in the firm's Employer Defense and Labor Relations Practice Group. He assists both public and private sector clients in a wide range of labor and employment matters.

Prior to joining Shipman & Goodwin, Gregory served as a judicial law clerk for both the Honorable Dennis Eveleigh (ret.) and the Honorable Raheem Mullins of the Connecticut Supreme Court. Before and during law school, he served as a Connecticut Police Officer.

EDUCATION PRACTICE AREAS

• Boston University B.A., 2008 • Employment Law • Quinnipiac University School of Law J.D., 2017, summa cum laude • Labor Relations • Labor, Employment and Benefits BAR ADMISSIONS

• Connecticut

DISTINCTIONS

• Quinnipiac Law Review, Associate Editor (2015-2017) • Academic Excellence Award (2017) • CATIC Foundation Award for Excellence in Property Law (2017) • Distinguished Achievement Awards in: Civil Procedure; Torts; Contracts; Legal Skills; Constitutional Law; Property; Trusts & Estates; Criminal Procedure: The Adjudicative Process; Advanced Civil Procedure: Connecticut Practice; Real Estate Transactions: 2014-2017 • Phi Delta Phi Legal Honor Society • Academic Merit Scholarship (2014-2017) • Christopher Bannerman Memorial Scholarship (2014; 2016)

NOTES

86 The Janus Decision: A Deep Dive for Employers

Jarad M. Lucan Ashley L. Marshall

THE JANUS DECISION: A Deep Dive For Employers

Jarad M. Lucan Ashley L. Marshall

I. THE LAW PRE-JANUS.

A. The Abood Case.

1. Teachers employed by the Detroit Board of Education challenged their union’s use of agency fees (or service fees) to support activities other than those related to the negotiation and administration of the collective bargaining agreement.

a. An “agency fee” is a fee charged to a non-union employee that is intended to pay their fair share to the union to cover the costs of representation and other collective bargaining activities conducted on behalf of all employees in the bargaining unit.

2. They claimed that the use of service fees for certain economic, religious, and political activities was a violation of their First and Fourteenth Amendment rights.

3. The U.S. Supreme Court upheld the use of agency fees to pay a fair share of the cost that a union incurs when negotiating on behalf of public employees who opted out of union membership. However, no part of the payment could go to any of the union’s political or ideological activities. Abood v. Detroit Board of Ed., 431 U.S. 209 (1977).

b. The Court’s ruling in Abood struck the balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper.

c. Specifically, the Court was concerned about “free riders,” who did not support collective bargaining, but still received the benefits of it.

4. After Abood, agency fee clauses authorizing the deduction of agency or service fees became standard in collective bargaining agreements.

II. THE JANUS DECISION.

A. What is the case about?

1. Janus v. Am. Fed’n of State, County and Mun. Emp’s, Council 31, 138 S. Ct. 2448 (2018) was decided on June 27, 2018.

2. The plaintiff, Mark Janus, did not want to become a member of the union, citing concerns regarding its positions on fiscal matters during collective bargaining.

3. Although Janus did not join the union, he was still required to pay a “service fee” of $44.58 per month to pay for the union’s representational activities. This requirement was codified in an Illinois law allowing unions to charge nonmembers a fee to cover the expenses of collective bargaining.

4. Janus challenged the constitutionality of the Illinois law allowing unions to charge agency fees, claiming that it violated his First Amendment rights.

5. In a 5-4 decision, the U.S. Supreme Court ruled in favor Janus and declared the Illinois law, and the use of agency fees in general, as unconstitutional.

6. Janus overruled the Supreme Court’s prior ruling in Abood.

III. IMPACT OF JANUS.

A. Connecticut Labor Laws.

1. The Municipal Employee Relations Act (“MERA”) authorizes municipal employers to negotiate provisions in a collective bargaining agreement calling for the payroll deduction of employee organization dues and initiation fees. Conn. Gen. Stat. § 7-477.

2. The Teacher Negotiation Act (“TNA”) allows a local or regional board of education to require as a condition of employment that all employees in a bargaining unit pay an annual service fee. Conn. Gen. Stat. § 10-153a(c).

3. The State Employees Relations Act (“SERA”) requires as a condition of employment that each employee who is not a member of a union pay a service fee. Conn. Gen. Stat. § 5-280.

4. Under Janus, the requirement of SERA is unconstitutional; and the provisions in MERA and the TNA can no longer legally be enforced. Moreover, State Board of Labor Relations decisions mandating agency fees are no longer valid.

B. Collective Bargaining Agreements.

1. Union security provisions.

a. These provisions typically make it a condition of employment for nonunion employees to pay to the union a “fair share” service fee.

b. Under Janus, these provisions are now illegal and unenforceable.

2. Severability clauses.

a. Many contracts have severability clauses, also known as savings clauses because they “save” the contract from being illegal or unenforceable. These clauses provide that the illegal provision is void and that the rest of the contract carries forward.

b. If a contract contains a severability clause, no formal contract action to amend the contract is required.

c. Many collective bargaining agreements do not have severability clauses. In such cases, the contract must be considered as a whole, and the entire contract is subject to legal attack due to the illegal agency fee provision.

i. To address this situation, public employers should seek a contract amendment or a memorandum of understanding confirming that the agency fee provision is void and that the rest of the contract carries forward.

C. Agency Fees vs. Union Dues.

1. Janus makes agency fees illegal without the employee’s affirmative consent.

a. Without clear, affirmative consent, all agency fee deductions should stop.

2. Union dues are not impacted by Janus, and existing membership cards or other agreements by union members to pay dues should continue to be honored.

a. Dues deductions should continue.

3. What if an employee revokes their authorization to deduct union dues?

a. Employers should comply with written revocations of authorization to withhold dues (depending on the language of the revocation). Failure to do so could be a violation CT labor laws.

i. “No employer may withhold or divert any portion of an employee’s wages unless . . . the employer has written authorization from the

employee for deductions on a form approved by the commissioner.” Conn. Gen. Stat. § 31-71e.

ii. Does it make sense to inform the union of a revocation request?

b. Do not advise employees on how to withdraw from union membership.

c. Do not advise employees to revoke their authorization for union dues deductions.

d. Refer employees seeking advice about withdrawal and revocation of union dues authorization to their union.

i. Union membership and dues deductions are matters between the individual employee and the union. There may be rules imposed by the union that determine when and how an employee may terminate union membership and the obligation to pay dues.

ii. Advising dues payers about union withdrawal, revoking their authorization to deduct union dues, or about Janus in general might invite a prohibited practice charge for interference with protected union activity or contract repudiation.

e. Have a conversation with the union about how to handle questions from employees about withdrawal and/or revoking authorization for dues deductions. This will promote good communication and ensure that the union is not hit with any surprises.

f. The union has a direct interest in stopping dues deductions if an employee revokes authorization. Many collective bargaining agreements contain indemnification provisions which provide that the union may be liable for any deductions that are in violation of the law.

4. What if the collective bargaining agreement contains limitations on when and how the employee may stop dues deductions and/or resign union membership, such as a window period or a certified mail requirement?

a. Recently, the NLRB’s general counsel advised that window periods that only allow revocation 60-75 days before a contract expires are illegal, and that certified mail requirements are an “unnecessary impediment” to membership/dues deduction revocation. General Counsel’s Clarification Regarding Section 8(b)(1)(A) Duty of Fair Representation Charges, GC 19-05 (March 26, 2019).

i. This advice, however, is not binding law.

b. The NLRB also advised, in 2016, that a union violates its duty of fair representation if it does not respond to a premature dues revocation request that is received before the applicable window period. Teamsters Local 385, et al. (Walt Disney World), 12-CB-149945, ET AL. (2016) (released April 15, 2019).

i. Several cases were submitted for advice in which the Charging Parties alleged that their respective unions mishandled their requests to revoke their dues authorizations.

ii. Each of the Charging Parties had submitted dues revocation requests prior to the window period outlined in their collective bargaining agreements. In their requests, each party had also requested information about the revocation process.

iii. The Charging Parties alleged that their unions did not respond to their written requests for dues revocation and information. After receiving no response, the Charging Parties requested the same information in-person and/or by telephone. They all claim that their union still did not respond.

iv. The Office of the General Counsel concluded that each union had breached its duty of fair representation by failing to respond to premature revocation requests, by failing to respond to information requests about the revocation process, and by failing to respond to in-person and telephone inquiries about that same process.

v. The Office of the General Counsel further concluded that the unions should have honored the Charging Parties’ untimely revocation requests sent after the window periods closed because the unions caused them to miss their revocation windows by failing to respond to their earlier inquiries.

c. Several federal courts have recently heard issues relating to window periods and certified mail requirements.

i. The Sixth Circuit upheld a certified mail requirement and a 15 day window period for revoking union membership. Ohlendorf v. United Food & Commercial Workers Int’l Union, Local 876, 883 F.3d 636 (6th Cir. 2018).

ii. In Pennsylvania, a state employee sued the state and her union for continuing to collect dues without her consent after resigning from union membership. The collective bargaining agreement contains a union security provision which limits when and how union members may resign from union membership. The employee must resign by certified letter within the 15 days prior to the expiration of the contract. This case is pending in the Eastern District of Pennsylvania. Oliver v. SEIU 668 et al., E.D. Penn., 2:19-cv- 00891, 2/28/19.

iii. In a similar case out of Pennsylvania, Lebanon Country workers sued their union after it required them to continue to pay union dues, after they resigned their union membership, until the date of their union membership anniversary. Adams et al. v. Teamsters Union Local 429 et al., M.D. Penn., 1:19-cv-00336, 2/27/19.

iv. A California teacher sued her union and the school district, alleging that a 30 day window revocation period limiting the time period in which she could revoke her dues authorization is a violation of Janus. Irene Seager et al. v. United Teachers Los Angeles et al., C.D. Cal., 2:19-cv-00469, 1/22/19.

v. A class of New Jersey teachers filed a class action lawsuit in federal court against their union, the school district, the state’s Attorney General, and others alleging that a state law that allows unions to continue to collect dues from former members until an annual opt-out period is unconstitutional under Janus. The Workplace Democracy Enhancement Act provides that former union members must wait until the anniversary of their hire date-- or Jan. 1 or July 1 in some cases--to revoke dues deductions. On May 2, 2019, the plaintiffs filed for partial summary judgment on their claims. The motion is currently pending. Smith v. New Jersey Education Association et al., D.N.J., 1:18-cv-10381, 6/11/18.

d. The Second Circuit has not had the opportunity to make a ruling on the legality of window periods and certified mail requirements for dues revocations.

D. Impact Negotiations.

1. Janus does not impose a duty to negotiate over the impact of stopping agency fee deductions.

2. Public employers have a duty to negotiate over changes that affect wages, hours and conditions of employment for members of the bargaining unit. With Janus, the impact is not on the employees--it’s on union. Therefore, duty to negotiate should not arise.

E. Retroactivity.

1. Janus should not be applied retroactively, though some agency fee payers may ask for reimbursement for past deductions of agency fees.

2. Prior to Janus, agency fee provisions were enforceable and legal under Abood. Therefore, claims for reimbursement for agency fees collected prior to Janus should be invalid because the fees were collected in good faith, pursuant to settled law.

a. Litigation has arisen in this area, and the Connecticut District Court has ruled that agency fees cannot be collected retroactively when the union collected the fees in reliance on existing law.

i. In June 2018, a class action was filed by state workers in Connecticut District Court against their union in which the workers sought to claw back agency fees paid to the union prior to Janus. Wholean et al. v. CSEA SEIU Local 2001 et al., Docket No. 3:18- cv-01008, 2019 WL 1873021 (D. Conn. April 26, 2019).

ii. The union filed a motion to dismiss, and the Connecticut District Court granted that motion and dismissed the plaintiffs’ claim for retroactive reimbursement for agency fees paid prior to Janus.

iii. The court concluded that the union was not obligated to reimburse the plaintiffs for fees paid prior to Janus because those fees were paid to the union pursuant to the union’s good faith belief that such fees were authorized by the existing law under Abood and under CT state law. See also Mooney v. Illinois Educ. Ass'n., Docket No. 1:18-cv-1439, 2019 WL 1575186 (C.D. Ill. April 11, 2019) (recognizing growing consensus concluding that fees collected prior to Janus may not be recovered).

b. Mark Janus filed a follow-up lawsuit seeking reimbursement for the agency fees he paid prior to his victory in the 2018 Janus case. The U.S. District Court concluded that Janus was not entitled to these past fees because the fees were paid by Janus in accordance with a constitutionally valid state statute. Janus v. American Federation of State, County and

Municipal Employees, Council 31, AFL-CIO, Docket No. 15-C-1235, 2019 WL 1239780 (N.D. Ill. March 18, 2019).

F. Other Janus-Related Litigation.

1. Branch v. Commonwealth Employment Relations Board, 481 Mass. 810 (2019). The Massachusetts Supreme Judicial Court rejected a claim by nonunion public employees that they had the right to participate in labor negotiations. Massachusetts General Law 150E states that the union, as the exclusive representative of the bargaining unit (including nonunion members), shall be responsible for “representing the interest of all such employees without discrimination and without regard to employee organization membership.” The plaintiffs challenged the constitutionality of this statute, arguing that exclusive representation forces them to associate with the unions in violation of their First Amendment Rights. Furthermore, the plaintiffs alleged that the union’s duty of fair representation to nonunion members meant that they should be allowed to participate in the collective bargaining process. The Massachusetts Supreme Judicial Court rejected the plaintiffs’ arguments. It held that exclusion of nonmembers from the bargaining process did not violate the First Amendment because they had the opportunity to vote on the formation of the union and lost that vote. Exclusion of nonmembers from bargaining is a result of the well- established majority-rule concept. Unions only have to ensure that the bargaining process is fair to both members and nonmembers.

IV. Legislative Efforts Post-Janus.

B. Proposed Connecticut Legislation.

1. H.B. 5637: Requires that public bargaining agreements and related employee notices include a “clear and conspicuous statement of any employee’s right to opt out of membership in the union.”

2. H.B. 6936: Requires public employers to honor the terms of a payroll deduction authorization subject to the following:

a. The employee may only revoke authorization pursuant to the terms of the authorization he or she signed;

b. Deductions shall start the pay period after the employer receives notification of the authorization;

c. Requests to authorize dues or other deductions, and requests to revoke them, shall be directed to the union rather than the employer;

d. A union need not provide an employer with a copy of an employee’s authorization unless a dispute arises about the authorization; and

e. A union shall indemnify the employer for any claims made regarding such deduction.

3. H.B. 6930: Requires a public employer to provide the union with access to public employee orientations to explain the unions’ role and benefits offered by the union. Also required a public employer to provide at least ten days’ notice of any such orientation.

4. H.B. 6935: Requires that a public employer meet and confer with the union prior to issuing a mass communication regarding employee rights to join or not join a union.

C. Other Legislation.

1. Rhode Island and New York have passed legislation allowing certain unions to stop representing non-members in grievance cases.

2. New York passed a law that prevents state agencies from releasing employees’ personal data that could be used by anti-union groups to persuade members to opt out of union membership.

a. California and New Jersey have passed similar laws.

3. California, Maryland, and Washington guarantee unions full access to hiring orientation sessions.

4. California, Washington, and New Jersey prohibit public employers from discouraging union membership.

a. New Jersey imposes a financial penalty for violating this law--employers must reimburse unions for any lost dues resulting from the employers actions.

5. Hawaii, New Jersey and Delaware passed legislation that limits the period during which employees can revoke their union membership.

V. BEST PRACTICES FOR PUBLIC EMPLOYERS POST-JANUS.

B. Communicate!

1. Work cooperatively and respectfully with the affected union.

2. Confer with the union in advance regarding communications with agency payers about Janus.

3. Refrain from communicating with dues payers regarding Janus.

C. Stop all deductions for agency fees immediately, unless you have clear, affirmative, and written consent.

1. Do not stop deductions for union dues, unless an employee provides a written revocation of the employer’s permission to take such deductions.

a. Do not advise employees about stopping dues deductions or withdrawing from the union.

b. When dealing with a revocation of permission to deduct dues, consider whether there are limitations in the collective bargaining agreement on this right (window periods, certified mail requirements, etc.).

i. If these limitations exist, refer the employee to the union.

c. Notify the union when you receive requests to revoke permission to deduct dues.

D. Understand Your Collective Bargaining Agreement.

1. Consider whether there is a savings clause in the contract.

2. Review the contract’s indemnification provision(s), if they exist.

Jarad M. Lucan Partner

P (860) 251-5785 / F (860) 251-5215 [email protected]

Jarad Lucan is a partner in the firm's Employer Defense and Labor Relations Practice Group. He represents local and state governments, non-profit organizations, public and private universities and schools, health care entities, construction companies, manufacturers and service providers in traditional labor management relations and employment law. Jarad represents employers in state and federal courts and before administrative agencies, including the National Labor

Relations Board, the Equal Employment Opportunity Commission, the Commission on Human Rights and Opportunities, the Department of Labor and the Connecticut State Board of Labor Relations.

Jarad's labor representation includes advising on collective bargaining PRACTICE AREAS relationships, labor disputes, unfair labor practices litigation, union organizing efforts and certification and decertification elections. In addition to representing • Employment Law clients in multiple forums, Jarad serves as a lead negotiator during contract • Employment Litigation negotiations with unions. • Labor Relations • Labor, Employment and Benefits

Jarad also helps employers with employment policies and risk management as well as litigation. He regularly advises clients on a broad range of personnel-related matters such as disciplinary issues; requests for accommodations; personnel policies, handbooks and manuals; non-compete agreements; wage and hour; discrimination; wrongful discharge; harassment; and retaliation. In light of recent high-profile cases involving claims of sexual harassment and misconduct in the workplace, Jarad provides a highly effective, interactive and engaging sexual harassment prevention training program to employers for their employees.

Jarad is a frequent speaker and author, both nationally and locally, and is often contacted by the media to comment on labor and employment legal matters. For example, he recently appeared in studio on WNPR’s Where We Live, where he discussed ways training can be implemented to confront the challenges of sexual harassment in the workplace.

EDUCATION

• Quinnipiac University School of Law J.D., 2007, cum laude • Villanova University B.A., 1998

BAR ADMISSIONS

• Connecticut

• Massachusetts

COURT ADMISSIONS

• U.S. District Court, District of CT • U.S. Court of Appeals for the Second Circuit

DISTINCTIONS

• Listed as a Connecticut Super Lawyer®: Employment & Labor (2018) • Listed as a Connecticut Super Lawyer Rising Star®: Employment & Labor (2013-2017) • New Leader in the Law, Connecticut Law Tribune (2015)

PROFESSIONAL AFFILIATIONS

• American Bar Association • Connecticut Bar Association: Member, Labor and Employment Section • Hartford County Bar Association • Labor and Employment Relations Association • Connecticut Public Employer Labor Relations Association • International Public Management Association for Human Resources - CT Chapter • CBIA Labor & Employment Law Council, Member

COMMUNITY INVOLVEMENT

• Fred D. Wish School Volunteer Tutor Program

Ashley L. Marshall Associate

P (860) 251-5011 / F (860) 251-5215 [email protected]

Ashley Marshall is an associate practicing in the areas of labor and employment and school law. Ashley represents public and private sector employers in a variety of matters including employment discrimination and retaliation claims filed in state and federal court, labor negotiations, grievance arbitrations, and prohibited practice proceedings. Ashley also represents clients before state agencies such as the Connecticut Commission on Human Rights and Opportunities, the Freedom of

Information Commission, the State Board of Mediation and Arbitration, and the State Board of Labor Relations. Furthermore, Ashley assists local boards of education on both labor and student issues.

Prior to joining the firm, Ashley was a summer associate with Shipman & PRACTICE AREAS Goodwin. While in law school, she served as an intern with the Poverty Law Clinic through Connecticut Legal Services and was an Associate Editor for the • Employment Law Connecticut Law Review. • Employment Litigation • Labor, Employment and Benefits • Public Schools EDUCATION • School Law

• University of Connecticut School of Law J.D., 2015, with honors • Howard University B.A., 2012, summa cum laude

BAR ADMISSIONS

• Connecticut

COURT ADMISSIONS

• U.S. District Court, District of CT

DISTINCTIONS

• Listed as a Connecticut Super Lawyer Rising Star®: Employment & Labor (2018) • George W. Crawford Black Bar Association's Priscilla Green Scholarship Award • Fleming James, Jr. Award for Excellence in the Study of Labor Law • CALI Excellence for the Future Awards: Law and Public Education; Labor Law

• Connecticut Law Review, Associate Editor

PROFESSIONAL AFFILIATIONS

• American Bar Association • Connecticut Bar Association • Hartford County Bar Association • Labor and Employment Relations Association • Crawford Black Bar Association

COMMUNITY INVOLVEMENT

• Youth Leader - Shiloh Christian Church • Fred D. Wish School Volunteer Tutor Program • Pro Bono Partnership Volunteer

100

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