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Legal Responsibilities of Administrators as Mandated Reporters
Part I: How and When to Make the Hotline Call
Unfortunately in today’s society, administrators find themselves in the awkward position of having to make hotline reports to Child Protective Services (CPS) more often these days. As mandated reporters under Article 6 Section 413 of the Social Services Law of New York State, it is your legal duty to make these hotline reports. Failure to do so can expose you not only to discipline by your employing district, but also personal liability for failing to do so. As such, knowing when to make the calls and how to make the calls are critical.
Pursuant to Social Services Law Section 420(2), a mandated reporter may be held liable criminally and civilly if he or she fails to report suspected child abuse. Pursuant to the statute, anyone who willfully fails to make a report of suspected child abuse or maltreatment shall be guilty of a Class A Misdemeanor. The statute goes further to indicate that anyone who willfully and knowingly fails to report suspected child abuse or maltreatment can be held civilly liable by the victim and/or his or her guardians for the damages caused by the failure to report. The courts in New York State have held school officials liable for this in specific situations. For example in the case of Kimberly v. Bradford, 226 AD2d 85 (4th Dept. 1996), the court held a teacher responsible for not reporting the suspected sexual abuse of a child by her uncle while she was on summer vacation with him in another state. The court concluded that a mandated reporter is obligated to report suspected cases of child sexual abuse based upon facts and circumstances within the knowledge of the reporter at the time the abuse is suspected and may be held liable for a breach of that duty, even though it might ultimately be determined that the abuse was not committed or allowed to have been committed by a “person legally responsible” for the child.
Section 413 of the Social Services Law requires that any part-time or full-time employee of a public school district report or cause a report to be made when: (1) they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child; (2) they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child; or (3) they have reasonable cause to suspect that a child less than eighteen years of age whose parent or other person legally responsible for his care … commits, or allows to be committed, a sex offense against such child, as defined in the penal law. Subdivision (g) of that section provides that a “person legally responsible” “includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time.” A custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child. Section 419 of the Social Services Law provides immunity to those who make a hotline call, so long as the report is made in good faith, without malice, and with a reasonable basis.
There are many situations where a hotline call to CPS is warranted. Some examples include if the child is excessively absent and the parents/caregivers are not responding to communications from the school; the child comes to school on a regular and continuous basis dirty and hungry; the child comes to school on a continuous basis with bruises or in obvious pain and is withdrawn; or if a child confides to an employee of the district that they are afraid to go home and discloses why on more than one occasion. Once a hotline call is received, CPS has 24 hours to lay eyes on the child and then an investigation will be conducted.
This is a very important judgment call that will need to be made very quickly but must have a reasonable basis. If a child comes to your office and you see something concerning, don’t be too quick to make the hotline call. Remember, you must have a reasonable basis for calling the hotline. The courts in New York have held school districts liable for hotlines that were made without any attempt to determine the facts and circumstances surrounding the situation. In Vacchio v. St. Pauls United Methodist Nursery School, New York Law Journal, July 21, 1995 p. 32 col.2, a nursery school teacher noticed a child with a black eye and immediately made a hotline call to the State Central Registry in Albany. The district was not allowed to avail itself of the immunity provided in Section 419, as no attempt was made to find out how the child got the black eye. In discussing the immunity afforded the defendants pursuant to Section 419, the judge acknowledged that for the purposes of any criminal or civil proceeding, the good faith of any person or official required to report cases of child abuse or maltreatment shall be presumed, provided such person, official or institution was acting in the discharge or their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person. The court then went on to write that it is at least arguable that the failure to conduct a preliminary inquiry or investigation prior to the rendering of a report may support a finding of gross negligence.
So what would constitute a preliminary investigation into a matter? The very first thing that should be done is a call to the teacher, guidance counselor, school social worker, and the school nurse. Schedule a meeting post haste with everyone. Ask questions, such as has the child come to school bruised or complained of feeling ill before? If so, how often and is there any documentation in the nurse’s office to back this up? Document the meeting, then make the determination whether a call needs to be made. Whatever you do, make certain you do not take photos of the child or question the child extensively regarding the matter. And most importantly do not do a physical examination of the child. These calls are anonymous so the parents or caregiver will not be made aware of who made the call.
It is always a good idea to notify the superintendent of the need to make the call and the totality of the circumstances of why the call was made. When an angry parent calls the district because they have been paid a visit by CPS, the superintendent will already know the circumstances. Even though your call will be anonymous, parents may have suspicions as to who made the call. This will be especially obvious if you are making a call due to excessive absences from school.
The appropriate way to make a hotline call is as important as knowing when to make t such a call. All hotline reports must be made to the State Central Registry in Albany. The telephone number is 1-800-342-3720. Do not call your local department of social services. All calls must go through the main office in Albany. There may be times that the registry decides the information provided by you does not warrant an investigation. As long as you have made the call and you document this, you cannot be held liable should the matter develop in the future. Always document who you spoke with and the time and date you spoke with them. And always inform the superintendent or their designee of any and all hotline calls made.
The SAANYS Legal Department understands the difficulty of determining if a reasonable basis exists for making these calls. Please contact us with any questions you may have regarding this should a situation arise. Please make sure to read next month’s article regarding child abuse in the educational setting and the legal responsibilities of administrators regarding such situations.
As all administrators know, Spring is traditionally the best time of year to find new employment in other districts. Unfortunately, this is not always by choice, as it is also the time of year when school districts decide to reorganize as part of the budgetary process. While leaving a position under this condition is certainly stressful, some comfort should be taken in the fact that these are common occurrences all over the state and the vast majority of administrators land on their feet in short order. If you are ever in this situation, you should call the SAANYS Legal Department to know your rights and options, but the following is a brief overview of rights potentially available to you.
Once a district decides to abolish a position, it is extremely difficult to stop the process without significant political pressure from the community. The courts give great deference to a school district’s decision to reorganize, even if the reason for cutting the position is not financial. To legally challenge such a cut, it would have to be proven that the reason being offered by the district for the cut is merely pretext for a discriminatory reason, which is no easy feat.
For certificated administrators, once a position is abolished, it is the least senior person in the position’s tenure area that is laid off. Depending on how your district organizes its tenure areas, this may or may not be the person encumbering the title that is going to be abolished. The person being let go is then placed on a preferred eligibility list for a period of seven years. During this period, if the position is recreated or if there is an opening in the tenure area, the position must first be offered to the person on the list before it is posted and filled with either an internal or external candidate. If the recall is declined, then the person remains on the list for the remainder of the seven-year period and must be offered any qualifying opening during that period. It is very important that if your position is going to be cut that you do not resign or else you will lose your recall rights.
Civil service members whose positions are abolished are placed on a preferred eligibility list for a period of four years. Districts must offer any qualifying openings to the person on the list prior to posting the position. Unlike with certificated members, if a civil service person refuses a recall, he/she is considered to have waived the right and will no longer be entitled to recall, even if there are further openings during the four-year period.
Once the position is abolished, it is important for the unit to examine where the work is going. Bargaining units should look at the scope of the extra duties being absorbed by its members to determine whether impact bargaining for additional supports and/or money is warranted. If duties are being given to non-unit positions, the exclusivity of the duties must be analyzed to determine whether there is a viable transfer of bargaining unit work claim. Finally, if a new position is created, it should be determined whether it belongs in the unit and whether the person let go has some entitlement to it. SAANYS is here to help units and impacted members determine rights and responsibilities on a case-by-case basis.
Recent Changes in Labor Law
Periodically, the SAANYS Legal Department likes to update our members on important changes, or upcoming ones, to the labor laws. We have identified three updates that you should know about.
The first one you may have already noticed on your pay stub. Starting January 1, 2018, New York State implemented its Paid Family Leave law (PFL), not to be confused with the Federal Family Medical Leave Act (FMLA). PFL provides up to eight weeks of leave to eligible employees at 50 percent of the employee’s average weekly wage, capped at 50 percent of the New York State Average Weekly Wage, which is $652.96. PFL may be used to: 1) bond with a newly born, adopted or fostered child; 2) care for a family member with a serious health condition; or, 3) assist loved ones when a family member is deployed abroad on active military service. PFL is taken concurrently with FMLA when the necessitating factors for the leave are applicable under both laws. With respect to vacation/sick days and PFL, the status of those days will vary by employer. PFL is paid through payroll taxes on all New York employees at a rate of 0.126 percent of an employee’s weekly wage and is capped at an annual maximum of $85.56 (for 2018). Despite public employees, including most SAANYS members, being required to pay the tax, PFL only applies automatically to employees in the private sector. Public employers may opt into PFL at their discretion, or negotiate the benefits of the law into their contracts with labor organizations. So far the general trend has been for school districts not to offer this benefit unilaterally. In some cases this could be because there is already a provision for child care or extended sick leave in the applicable contract.
The second update is a result of a recent New York State Court of Appeals case, Froman v. Henkin decided on February 13, 2018. Previously in New York, posts on Facebook set to the private setting were not subject to discovery (being revealed during litigation) unless one party planned to use those posts in the trial or hearing. In Froman, the Court of Appeals found that social media settings of private or non-public do not require a “heightened standard for discovery” and that any relevant material likely to be found on Facebook should be made accessible via the discovery process during litigation. This ruling does not mean that one’s entire Facebook is subject to being revealed, only portions that could be relevant for litigation at hand, i.e. private posts made during a certain time frame. The judgment of what information is relevant will be at the discretion of the presiding judge or hearing officer. Previously, while information posted as private could still be made public as a result of Facebook friends with access to an individual’s account, the caveat now is that a judge can make private posts public if they believe the information is relevant. As always SAANYS’ recommendation is to think before you post anything on social media.
The last item that we must make you aware of is proposed Department of Labor (DOL) rule changes. These rules are posted on DOL’s website in a list format. While the majority of the current proposed changes do not apply to members, the following proposed change to “tipping” nationwide could be the subject of a student question. Under regulations enacted in 2011, restaurant tips are considered the sole property of service-facing employees (waiters, bussers, and bartenders). This is to take into account that employers are allowed to pay these employees less than minimum wage, because they get tips. Under the DOL’s new proposed rules restaurants will be permitted to pool tips and distribute them to employees as they see fit, or to keep tips for the business as a whole. How this proposed change could play into minimum wage laws is yet to be seen.
SAANYS takes pride in keeping our members up- to-date of any changes that could affect their employment. If you have any questions or comments regarding the above article or legal questions in general do not hesitate to contact the SAANYS Legal Department.
The Approval of Employment Terms
A frequent question that we field here in the SAANYS Legal Department from new and existing members alike, is who gets to approve a new Collective Bargaining Agreement (CBA) or add-ons to already existing terms and conditions of employment, such as Memorandums of Agreement or Understanding (MOA/MOU). These agreements and past practice collectively govern employee/employer labor relationships.
If you are a SAANYS individual contract member, the answer is that you do. You are the sole negotiator between yourself and the district, with respect to terms and conditions of employment. Many times in an individual contract situation, the employer will adopt a take it or leave it approach to the contract. While this may work for the new employee it is always a good bet that once you have achieved some staying power in the position you should move for an increase in benefits to your contract.
In the case of most other SAANYS members, terms and conditions of employment are governed by your CBA encompassing the position and those other positions that share a community of interest with yours. Most often this community of interest is based upon similar supervisory roles at the employer (whether over programs/people) or shared certification/hiring requirements. Roles sharing a community of interest combine to form the membership titles of an employee organization, commonly referred to as the “association” or “unit,” to which you are a member and which negotiates the group CBA.
The New York State agency, the Public Employment Relations Board (PERB), that governs employee organizations under the Civil Service Law, has taken the approach that the negotiation, approval, or modification (MOU/MOA), of CBAs is an internal organization matter. This means that apart from a few structural requirements, the individual group determines the content and approval process of the CBA. The internal requirements for the approval of CBAs and modifications to such are contained in a group’s by-laws or constitution, a governing document. Every group upon formation must have a governing document regulating the internal workings of the group, such as election of officers and approval of terms and conditions of employment (sample governing documents are available upon request from SAANYS). The base rule for this governing document is that it must not be deliberately discriminatory, arbitrary, or founded in bad faith.
The governing document will control how group officers and a negotiating team are selected. In most SAANYS’ units, this process is done by election, though there are cases where a group of positions will have a guaranteed seat at the table, i.e. the governing document will state that one of the elementary principals must be an officer of the group. In most cases, the officers or negotiating group will be given the power to independently deal with the employer over terms and conditions of employment. The legal requirement for this “dealing” with the employer being once again that it must not be deliberately discriminatory, arbitrary, or founded in bad faith, against any members.
With respect to complete CBAs, before a new one or extension of one is approved or ratified, the officers are required to disclose the terms of the agreement to the group membership. Ratification of the agreement does not require a vote and may be done by another process, so long as the process is fair. Further, courts have held that non-members of the group governed by the group contract, i.e. agency fee payers, have no affirmative right to participate in a ratification vote if there is one. The presumption being that the group has already worked for the best interests of all titles during negotiations. While there is no legal requirement for a subsequent ratification vote, this is the best practice for units to avoid allegations of improper conduct. In the case of contract modifications, such as MOAs or MOUs that may settle a PERB charge, grievance, or address a new situation that may come up, there is no affirmative duty to present the agreement to the unit membership. In practice, the leadership of the group will approve and negotiate the agreement, especially when it only affects one individual, or a sub-component of the group.
The caveat to this whole process is that at all times the officers of the group may not act purposefully deceptive, in that a member may request a copy of the governing documents, or existing CBA or modification to such at any time. Further, members are allowed to request other pertinent employment information from the officers at any time and receive a reasonable and timely response. The exception to this being that the officers are under no obligation to disclose information relating to course or conduct during collective negotiations or individual employment matters, most often relating to discipline. In fact, disclosure may be legally prevented in some cases.
As always, if there are any questions regarding the process of approving a CBA and its modifications please do not hesitate to contact the SAANYS Legal Department. Further, it is common for governing documents to be lost or misplaced over time. If this is the case, and the individual group cannot produce the documents, please contact SAANYS for further guidance.
Thinking About Retirement
Around the holidays, many of us have the opportunity to spend more time with family and loved ones. In the case of SAANYS members, these opportunities frequently lead to thoughts of retirement and spending even more time with those we care about. It is in this atmosphere that we frequently receive a host of questions regarding the retirement process.
In addition to any private retirement savings, SAANYS members, as public employees, are generally part of either the New York State Teachers Retirement System (TRS) or New York State Employee Retirement System (ERS). Most often, instructional titles will be in TRS while all others, such as Civil Service titles, will be in ERS.
To be eligible for retirement depends upon the system you are in. Both systems use tiers, based on date of hire, to govern when a member is eligible to retire without penalty. For ERS members in Tier 1, individuals may retire at age 55 or older without penalty. ERS Tiers 2-4 members who retire between the ages of 55-62 with 30 or more years of service credit may also retire without penalty. In addition, those members in Tiers 2-4 may retire at age 62 or older without penalty regardless of years of service. For those members in Tier 5, to retire without penalty a member must be age 62 or older and 63 for Tier 6.
For TRS Tier 1 members employed prior to July 1, 1973, to retire without penalty, members may retire at any age with 35 years in the system, or at age 55 or older with 5 or more years of service. TRS members in Tier 2-4 may retire either at age 62 or older with any amount of service, or at age 55 or older with at least 30 years of service. For TRS members in Tier 5 retiring without penalty involves retirement at age 62 or older, or at age 57 with 30 years of service. Finally, to avoid penalty, Tier 6 members must retire at age 63 or older, with 30 years of service. To find out your individual tier you can ask your employer’s personnel department, your applicable retirement system, or the SAANYS Legal Department.
After finding out if you are eligible to retire in either system, the next step when contemplating your retirement decision is to look at your individual or unit contract and see if there are any retirement incentives or due dates for when to give notice of retirement. Many contracts have incentives or penalties for giving notice at a certain date.
How the retirement systems calculate your pension is then calculated off of a general formula using your final average salary. For ERS Tiers 1-5 this final average salary is based upon average wages for the past three years of employment. For Tier 6, it is based off of average wages from the past five years of employment. The following types of wages count as final average salary in the eyes of ERS: contractual salary, holiday pay, longevity, overtime, and vacation pay up to 30 days. Note, Tier 6 members are not permitted to count vacation days as wages. With sick days, they may be counted as salary if your employer has chosen to offer the optional sick leave benefit as provided by Section 41 (j) of the New York Retirement and Social Security law. All other forms of compensation do not count for retirement purposes. This includes retirement bonuses, health insurance buybacks, and salary raises of more than 10 percent during the final average salary time period.
For TRS members, a similar system exists for calculating final average salary. For members in Tiers 1-5, hired prior to April 1, 2012, the final average salary will be based on average wages from your highest three consecutive years of employment, which may or may not be your last three years of employment. For Tier 6 members, the average is based upon the last 5 years of employment. Similarly, wages include: contractual salary, holiday pay, longevity, and overtime. Other applicable monies in TRS are wages from instructional time, including: coaching, the excellence in teaching program, forms of compensatory time, and tutoring. Generally, all instructional time will count for purposes of retirement. The 41(j) rule also applies to TRS, allowing employees of participating employers to count accrued sick days towards retirement. However, vacation days are not eligible for retirement purposes, nor are the topics of retirement bonuses, health insurance buybacks, or most 10 percent increases to salary during the final average salary period.
In addition, members in the system have the right to request an accounting from their applicable retirement system. This accounting will give the member data on their estimated state pension during retirement and the sources of such money. It is highly recommended that members request this accounting a few years before they decide to retire so that they may plan accordingly. Further, if there are any discrepancies in the accounting then the member may be able to rectify them proactively. Therefore, it is important to consult the applicable retirement system, SAANYS, and the district before submitting one’s retirement paperwork. Happy Retirement Planning!
The Role of the Unit President and the Responsibilities Regarding Disciplinary Matters
The role of the unit president is a very important position to hold and with the title comes a varying range of responsibilities. The one that causes the biggest concern for unit presidents and their members involves dealing with members whom the district or BOCES may be looking to counsel and/or discipline. Thankfully some unit presidents serve their term without the need to represent another member at a meeting with human resources or the superintendent. However, for some this situation will crop up and there are some very important things to note while going through this process.
First and foremost, call the SAANYS legal department. We will be able to assist you with any questions and the situation may call for representation by someone not in the unit. SAANYS is always happy to provide representation; however, as much notice as possible is very helpful. The law provides that an employer must give “a reasonable amount of time” to secure representation. This isn’t defined, but an email at noon that there’s going to be a meeting at three might not be reasonable. Conversely, if you and/or the impacted member is notified on Monday of a meeting first thing on Friday, but they do not notify their unit or SAANYS until Thursday at 5:00 pm, the argument about reasonable notice will be weak.
Next, you will need to determine whether the employee is a civil service employee, a certificated probationary employee, or a certificated tenured employee. Each of these comes with different due process protections and procedures that must be followed according to statute. The member in question may not know what their rights are according to the statute and you may need to explain to them what their rights are. Then you will need to assist them in protecting those rights until the SAANYS legal team steps in. The SAANYS legal team is accessible seven days per week, however, sometimes there is no time to contact us prior to a situation.
If you are contacted by a member or the district/ BOCES, and notified of a mandatory meeting whereby the member may have unit representation, there are several initial steps you should take: If you have the time, you should ask the member what they think the meeting is about and gather any details they can give you surrounding the situation. Then, you should counsel them on the importance of not speaking to anyone about this matter. The importance of remaining silent is critical at this point. If you have time, you should contact someone from the SAANYS legal team immediately. If you are called to the meeting and had no prior knowledge or opportunity to meet with the member, ask that the meeting be adjourned briefly so that you may talk to the member. If you are denied the opportunity to do this, then the instruction will vary depending on their employment status, as indicated in this article. If they are in a category that must answer questions, they should keep their answers as vanilla as possible.
No employee is required to answer questions in a matter that involves criminal activity. In that situation the employee may plead the Fifth Amendment, and in our opinion, should. You and the member should be doing more listening and note taking during this meeting than talking. The purpose of this tactic is to get a feel for the direction the district/ BOCES is headed with the issue(s). Will this be a counseling memo or a warning, or will they be placing the employee on leave pending charges? It is also critical to contact the SAANYS legal team as soon as is possible. At this point the legal team will be assisting you throughout the remainder of the process.
With the exception of potential criminal liability, Civil Service employees have no rights to refuse to answer questions. Should a Civil Service employee be brought in for a meeting with the employer and he/she refuses to answer, the result may be an insubordination charge. Civil Service employees fall under the protection of Article 75 of the Civil Service Law. Pursuant to this statute, employees are entitled to a hearing. An employee may be placed on leave without pay for up to thirty days. If the matter is not resolved in thirty days, then the member must either be put back to work or placed on paid administrative leave. Typically, a school district will place the employee on unpaid leave and conduct the hearing within that thirty day timeframe. While the employee is entitled to a hearing, the district and/or BOCES may choose anyone to be the hearing officer. Both sides will have the opportunity to present their case through witnesses and exhibits. Once the hearing is concluded, the opinion is only advisory and the district and/or BOCES may ignore the decision and proceed as they wish. While an employee may appeal via an action in New York State Supreme Court, they will remain unemployed during this appeal time.
Certificated probationary employees fall under the protection of section 3031 of the Education Law. Like Civil Service employees, they must answer questions, except in instances of criminal liability, or else face possible insubordination charges. Pursuant to the statute, if an employee is going to be either terminated or denied tenure during their probationary term, the district and/or BOCES must put them on notice prior. The statute provides for thirty days notice prior to the Board of Education meeting where the superintendent will be recommending either termination or denial of tenure to the Board of Education. This is commonly referred to as a 3031 letter. The employee then has no later than twenty one days prior to the meeting to request, in writing, the reasons for denial or termination. The district and/or BOCES then has no later than seven days after the written request is made to provide those reasons. The employee may then represent their position to the Board of Education no later than seven days prior to the Board of Education meeting where the issue will be decided. If the Board of Education decides to terminate or deny tenure, then the employee will receive notice of the decision and will be given thirty days from the date of decision to remain on the payroll and will continue to receive benefits if applicable. It is important to note that a Board of Education cannot grant tenure if the superintendent does not make a recommendation. However they can vote to deny tenure even if the superintendent does make the recommendation. If you are contacted by a member who receives such a letter or if you are notified by the district and/or BOCES that they will be denying tenure, you may need to explain these rights to the employee. Then contact the SAANYS legal team immediately as there are very tight time limits that must be adhered to.
Tenure certificated employees are provided with due process rights under section 3020-a of the Education Law. In addition, they are provided with the right to remain silent during an interrogation. The district and/or BOCES may not use this silence against them during any future proceedings. If you are approached by a tenured employee, who has been called to the superintendent’s office, and told to bring union representation, you should follow the same procedure as that of the civil service employee with one exception. Attend the meeting and listen to everything they have to say. Again, attempt to get a clear picture of what direction the district and/or BOCES will be headed with regard to the issue. However, instruct the member to decline to comment until they have spoken with counsel. Make an appointment to meet again and contact the SAANYS legal team immediately.
What to Do if Your Rights Are Violated
Now that the happy chaos that comes from having students in your building is in full swing, the SAANYS Legal Department would like to take this moment to remind everyone that issues affecting your terms and conditions of employment deserve immediate attention. Oftentimes, SAANYS members call the Legal Department because they know that the terms and conditions of their employment are being impacted, if not outright violated, but they are not sure what to do to protect themselves. All too often these calls are not made for several months after the violation occurred and legal action is limited due to strict statutes of limitations governing various types of action.
The first step when you are concerned that your rights are being violated is to look at your Collective Bargaining Agreement (CBA) to see whether it is a topic that has been negotiated. If there is a provision in the contract that has been violated, then the remedy is to go through the negotiated grievance procedure. Oftentimes there is a very short period of time in which a grievance can be started, or else it is waived, so it is very important to look at the contract and the grievance procedure as soon as a violation is suspected. How grievances are processed vary from bargaining unit to bargaining unit, so it is important not to assume that because grievances are processed in a certain way for teachers that the process will be the same for the administrators in the same district. Additionally, it is important to look at the actual grievance procedure to see what can be grieved. Some clauses are very narrow, whereas others are so broad that topics not within the CBA could potentially be grieved.
If the perceived violation is not something that is covered within the CBA, then it must be determined whether the issue is something that could be brought for review before the Public Employees’ Relations Board (PERB). The most typical types of cases that are brought before PERB are:
(1) Transfers of Bargaining Unit Work: This typically occurs when a district either creates a new position or distributes the duties of an abolished position. In such events, it is important to look at the duties to see if they have been previously performed exclusively by the bargaining unit.
(2) Mandatory Subjects of Bargaining: These are topics that directly impact wages, hours, or working conditions. Any subject that impacts these three areas cannot be changed from the status quo without first being negotiated. An example that has repeatedly been brought to our attention this summer is when a superintendent unilaterally declares that administrators must work specific hours. Sometimes a mandatory subject of bargaining is also covered in the CBA. In such situations, we will file both a grievance and an Improper Practice Charge with PERB, which will typically wait to see how the grievance is resolved before taking action.
(3) Past Practices: Past practices are often confusing to people because sometimes what is in the CBA is not adhered to by the unit and district for a number of years. If the subject matter of a past practice is covered by the contract, then either party has the right revert back to the negotiated terms at any time. For example, if there is a clause in a CBA that specifically spells out the number of days unit members are to work every year and it turns out that the unit has been working more days for a number of years because no one ever bothered to count the days, the unit can put the district on notice that it is reverting back to the contractual work year. In such cases, the district cannot do anything about this reverter as long as the CBA’s language is clear.
In situations where the CBA is silent on a topic area, the past practice will control so long as it has been consistently applied for an extended period of time, measured in years. In such cases, the past practice cannot be changed without negotiations. If the past practice has been sporadically applied, then a past practice does not exist.
For PERB actions, there is a 90 day window from when you discovered the violation in which to file a Notice of Claim with the school district. This puts the district on notice of the dispute and gives an opportunity for it to be remedied before a formal Improper Practice Charge is filed with PERB, which must be done within four months of discovering the alleged violation. Case law indicates that a Notice of Claim is not a prerequisite to commencing an action with PERB, but we often recommend doing so in order to foster settlement discussions with the district.
The third primary avenue for dealing with terms and conditions of employment comes when additional duties are added on to an administrator’s already busy schedule. When this occurs, the remedy is for the unit to demand impact bargaining. An individual may not engage in impact bargaining directly with the district. The remedies in impact bargaining can be anything from further distribution of the additional duties, to more support services, or additional monetary compensation. There isn’t a statute of limitations for demanding impacting bargaining. It is typically recommended that enough time passes so the impacted individual can gather data to quantify the number of hours the additional duties have added, but that impact bargaining is demanded within one year of the duties being added in order to avoid claims that the individual has lived with the duties without complaint.
These are just the three primary ways your terms and conditions of employment can be safeguarded. As always, the SAANYS Legal Department is here to answer any questions, guide you in the right direction and vigorously enforce your rights. Due to potentially tight statutes of limitations, it is always best to contact us right away if you suspect a violation so we can address it promptly.
Contract Negotiation Tips
Every year, SAANYS assists members in collective bargaining between 60 to 100 contracts. This article addresses some of the critical steps needed to ensure you receive an excellent contract that you well-deserve. Also, SAANYS provides some important information about negotiations that will help local units during the process.
Preparation is critical to negotiating an excellent deal. Each spring, bargaining units which have their contracts expire a year out, should start preparing for negotiations. We recognize it may be hectic after the spring break to organize a negotiating team for the following year, however, it is important to select the negotiating team then. Generally speaking, select members to serve on the negotiating team who are respected and/or well-liked by district administration. SAANYS recommends an odd number to serve on the negotiating team, most typically three people serve, because these members must vote eventually to take an offer back to the rest of the unit. If there is an equal number of negotiating team members who split evenly on this issue, negotiations will stale. It is also important to select particular types of people for the negotiating team. One type of person is a long-tenured administrator who is conversant with the history of the bargaining unit. Another type of person to select is a “numbers” person, though understand SAANYS provides those services, which include costing out each party’s proposal, analyzing and interpreting comparable salaries, and determining the district’s ability to pay. Another type of person is the note taker who will clearly record the events of every bargaining session.
Once the negotiating team is set, the team should notify SAANYS requesting assistance with collective bargaining. The negotiating team also should send out a survey to unit members seeking information on proposals.
Over the summer, a SAANYS attorney and/or labor relations specialist will meet with the negotiating team and review the relevant data noted above. For example, SAANYS can perform an intra-district analysis that carefully reviews the salary and other benefits provided to central office administrators, teachers, and other school employers to determine district trends in salary raises over the past few years and what, if any givebacks employees/units have made. One argument we often hear is that teacher step/increment is not considered “new money.” Don’t be fooled! Each step is indeed new money as is shown by the increase each year in the district’s budget line for teachers’ salaries. In addition, SAANYS can perform an inter-district analysis of the compensation and other terms and conditions for similarly situated administrators working in comparable school districts, usually in the same county. Recently, SAANYS has enhanced its data bases to include quicker access to SED’s database regarding BEDS data and TRS’s pension reports, the latter of which reveals how many teachers earn less than, the same, or more than administrators in the same district. This type of data provides compelling arguments to justify substantial raises at the bargaining table. Finally, SAANYS keeps abreast of the United States Department of Labor economic reports, such as Personal Consumption Expenditure Price Index and the Consumer Price Index, to reasonably predict economic forecasts.
Once all the data is analyzed and discussed, the bargaining team should formulate proposals aided by the survey information. Again, SAANYS can assist by drafting the proposals in proper form. Prioritize your proposals. The most important aspect of preparing proposals is costing them out. Note if the unit’s proposals will cost a school district an unrealistic amount of money, like seven percent, the unit will lose legitimacy at the bargaining table. Costing out the proposals is critically important.
At the bargaining table, the negotiating team must have a complete financial picture of the employer and a good awareness of the contracts of similarly situated administrative units in the area. The team must be prepared to explain the rationale for each of its proposals. During negotiations, remember there will be give/take moments and the proposals may change during actual bargaining. An important tip is that the unit does not have to accept any or all of the proposals presented by management. The unit negotiating team may accept or reject in whole or in part each of the district’s proposals. As a result, it is critical that the designated note taker for the negotiating team meticulously record the events and statements/beliefs related to the parties’ proposals and the subsequently agreed upon terms. These notes become critical years later, when disputes arise over the meaning of specific contract language. Unfortunately, by that time, the negotiating team members are long retired. In fact, SAANYS is currently prosecuting a number of arbitrations where contract negotiation notes will play a significant role. To avoid problems with retrieval of collective bargaining notes, SAANYS has started to electronically store negotiations notes. To that end, when you have completed negotiations for a successor contract, please provide SAANYS a copy of your new contract and the official notes recorded during collective bargaining. In this way, we can better serve the union in the years to come.
A final point about negotiations relates to the applicability of retroactivity of salary increases. Over the past year, several contract settlements were temporarily delayed because of misunderstandings over who is entitled to retroactive salary increases. By law, retroactive salary increases are a mandatory topic. SAANYS takes the negotiating position that we will not negotiate any new/successor collective bargaining agreement that does not include retroactive increases for members who were already hired and working for the District prior to the contract expiring or for those members who retired after the contract expired but before the new contract was settled. However, problems arise with members who were hired after the contract expired but before the new contract was negotiated as to their rights, if any to salary increases. Issues also occur with former union members who leave the school district for employment elsewhere before the new contract is negotiated and demand salary increases for the period of time they worked in district before leaving.
As in the former group, the law is that newly hired unit members negotiate their starting salary with management without the unit input. Accordingly, if the contract expired on June 30, 2015, a person was hired on July 1, 2015 and subsequently a new contract was negotiated granting union members a 2.5 percent raise on July 1, 2015 for the 2015-16 school year, the new person is not legally entitled to a raise since their salary was set by their own individual negotiations. In one school district recently, a business official verbally told new hirees that they may receive an additional raise depending on collective bargaining. Unfortunately, without a written agreement to substantiate the business official’s oral promise, such alleged representation is unenforceable. However, if the new contract continued to be unsettled until January 2017, then that same new hiree would be entitled to the negotiated raise for following school year, the 2016-17 school year, but not the 2015-16 school year, his/her first year of employment in the district.
As to the group of unit members who leave the school district for employment elsewhere, school districts almost always resist giving retroactive salary increases for these members. The often heard rationale from school districts is why would we give money to individuals who have left our district for employment elsewhere. However, although rare, a Long Island negotiating team was successful in negotiating retroactive annual salary increases (but not sizable longevity increases) for members who left the district for work in other school districts. Their efforts in gaining this increase reinforces a SAANYS’ guiding principle that you will never get anything you do not ask for. As a general rule, school districts will agree to give retroactive salary increases for unit members who retire before the completion of negotiations for a new contract.
We hope this article provides sound advice as you begin to prepare for negotiations. Additional information was provided to you about the vast resources of SAANYS to assist you in collective bargaining. Please take advantage of them. Finally, we hoped that the article educated you on a few bargaining concepts.
FMLA as Applied to Maternity Leave
While some collective bargaining agreements do contain a provision covering maternity/child rearing leave, some do not. If that is the case, employees have options such as the Family and Medical Leave Act, better known as FMLA.
Expectant mothers are entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. In addition, both parents are entitled to twelve weeks of FMLA leave to bond with their healthy newborn child. Both parents are entitled to twelve weeks of leave in a twelve month period of time so long as they do not work for the same employer. If both parents work for the same school district or BOCES they are only entitled to a combined twelve weeks of leave.
More specifically, FMLA will provide for up to twelve weeks off in a twelve month period of time starting from the day of birth. The law does not indicate that twelve weeks must be taken consecutively. If you would like to use your time intermittently you will need permission from your employer. For example, if you wish to return to work after six weeks but would like to return part time, your employer would need to approve that. Be very careful and always contact the legal team at SAANYS if you would like to negotiate something such as this. Employers can require you to temporarily transfer to an alternate position to accommodate you. This could affect tenure and should only be done with the advice of counsel.
Many employers will require the parent to utilize all sick and vacation time during this twelve week period of time. This requirement is consistent with the law and can be implemented by employers. For example, if you have six weeks of combined vacation and sick time then you will be required to utilize all of your time during your leave. You may also have the luxury of working for a district that has a sick bank and may utilize this for the remainder of your leave. Every Collective Bargaining Agreement and/or district has different rules when it comes to sick banks.
Be very careful of your calculations when taking leave as you are only required to charge days that you would have been required to report to work. For example, if you are a ten month employee and take your leave from June 1 through September 1, and your work year ends on June 30 and begins on August 15, then you will only be charging six weeks of time. Your FMLA will also have six weeks of remaining time come September 1 should you need to take it later in the year for any complications due to pregnancy or if your child becomes ill. Another example of time extension could occur if you are not required to report to work during school breaks and your leave spans over that time frame. For example, you take leave on December 1 to return on March 1. That would include the winter break and the Christmas break. Those two weeks would not be considered part of the calculation, therefore you would not need to charge time and you would still have two weeks of FMLA time remaining on March 1.
Another leave calculation that should be carefully analyzed would be leave taken during a probationary period. Say for example you began your probationary period on September 1, 2016 with an expected expiration of September 1, 2020. You are an eleven month employee whose work year runs from August 1 until June 30 every year. You take FMLA leave from June 1 through September 1. Upon your return, you will still have four weeks of FMLA time remaining, and you should not have charged any sick or vacation time in the month of July. However, what is most important to consider at this point in your career, is the extension of your probationary period due to this leave. The district can extend your time a total of the amount of days you were required to report to work and did not. They may not count the weekends, holidays, or any time you are not required to report to work. When they apply this standard, they must apply a work-day-to-calendar-day formula when adding your time on the end of your probationary period. It is important to note, they may just simply send you a letter indicating the extension, they may request that you sign an agreement, or they may simply say nothing. Any employee would be precluded from claiming tenure by estoppel prior to the expiration of the additional time pursuant to a leave.
Please contact the SAANYS legal team anytime that you will be taking advantage of leave time, whether it’s for maternity reasons or any other reason for that matter. Calculations of time, and availability of sick bank time will vary depending on your particular collective bargaining, so it is always important to ask.
Commissioner Continues to Narrowly Interpret Administrators’ Rights to Newly Created Positions
Some SAANYS clients have faced losing their position due to abolishment or excessing, only to learn that the district is creating a new position that looks similar to their position. These individuals have asked SAANYS to analyze and determine what, if any rights, they have to the new position. Recently, SAANYS received three decisions from the commissioner each upholding a narrow interpretation of the applicable law. This article addresses what the law is and what factors must be analyzed to determine a certified administrator’s rights to a newly created position after their position has been abolished.
Depending on the configuration of the school district under the Education Law (See Education Law Sections 2510, 2573, and 3013), an administrator whose position is abolished may be entitled to a newly created position provided the new and abolished positions share over fifty percent similar duties. However, the commissioner and New York courts have subsequently required additional elements be met before awarding the administrator the job. Foremost, the two positions must be in the same tenure. If they are not, the incumbent administrator will have no rights to the new position and will be placed on a preferred eligibility list for seven years. Critical to this analysis is to determine the existing tenure structure in the school district. For example, does the district maintain only a broad general tenure for all administrators or narrower tenure areas depending on building and/or district-wide responsibilities?
The next required element is whether the majority of the duties of the new position are similar to those of the administrator’s former position. This requirement is found in the statutory language.
Lastly, the commissioner has introduced a third element into this analysis that is related to the second one. Specifically, the commissioner considers in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position. With this last element, the commissioner will find against the incumbent administrator if the certification requirements for the two positions are different.
It is critical to understand that school districts do not blindly abolish and create positions. The superintendent and board of education sit down with counsel and analyze how to create new positions, often times so that incumbent administrators do not have any legal right to the new position. SAANYS would be remiss in not pointing out that school district counsel frequently recommends courses of action that adversely affect incumbent administrators’ tenure rights under the guise of reorganization. Hence, it is critical to alert SAANYS immediately when there is a discussion of a possible abolishment or excessing.
SAANYS will need to review the school district’s current tenure configuration, this will require analysis of the effected administrator(s)’ appointment letter, board resolution appointing them to a probationary tenure and the relevant board minutes, their tenure letter, board resolution granting them tenure with the related board minutes, and any additional documents establishing the tenure areas in the school district and of the positions involved. SAANYS will also need to review the effected administrator’s job description and interview that person to determine exactly the actual duties he/she performs and what percentage of time is devoted to executing them. Next, SAANYS will need to analyze the job description for the newly created position, and interview individuals who had previously performed those duties and what percentage of a normal administrator’s work day was devoted performing those responsibilities.
What these decisions demonstrate:
These cases demonstrate that the “more than fifty percent similar” test under Education Law §§ 2510 and 3013 can be a difficult standard to overcome. Two recent decisions issued by the commissioner in December 2016 involved the same Central New York administrator. In the first appeal, the administrator served as the director of professional development until the district decided to abolish her position and create a new director position called director of educator effectiveness, training, and library media. The commissioner denied the appeal determining that the new director position was substantially different from the petitioner’s former position. The commissioner found that the new position required a majority of the work-time be devoted to tasks related to the new state APPR mandates, which the abolished position did not. Note, this particular appeal was commenced in 2012. The commissioner further held that the new director position involved broader, district-wide responsibilities, and functions originating from other positions other than the petitioner’s former job. As an example, the commissioner noted that the former position did not require certification in mathematics instruction, while the newly created position did. Under these circumstances, the commissioner of education found that petitioner failed to meet her burden of establishing that the two positions were similar.
Approximately one year later, the same board of education met and abolished the position of director of educator effectiveness, training, and library media (the previously new director position) and replaced it now with the new position entitled director of educator effectiveness and math. The original petitioner again contended under the education law that she should be entitled to this new position in that it was more than fifty percent similar to her former job as director of professional development. The commissioner dismissed the petitioner’s second appeal, concluding that her former director position and the newly created director of educator effectiveness, training, and library media shared duties that were less than fifty percent similar. The commissioner noted that many of the same duties of the director of educator effectiveness, training, and library media were simply transferred to this newest director position, including the duties associated with the library media, the mathematics instruction, and the district-wide responsibilities relating to the APPR mandates. The commissioner held it was well within the board of education’s authority to abolish and redistribute administrative responsibilities.
In the final case decided by the commissioner at the end of 2016, she denied that the former director of pupil personnel services had rights to the newly created position of director of special education. In this particular case, the petitioner, the former director of pupil personnel services, contended not only that she was entitled by law to the new position on the grounds that the two positions encompassed more than fifty percent of the same job responsibilities, but also that the school district improperly abolished her position in order to circumvent her tenure rights. The commissioner rejected these arguments and held that the petitioner failed to establish that the two positions were in the same tenure area. The commissioner also noted that the position of director of pupil personnel services required various supervisory responsibilities with substantially broader experience, while the director of special education focused solely on special education needs within the district.
These three recent commissioner decisions illustrate that school districts have the advantage in abolishing and then re-creating positions. The impacted administrator has the burden of establishing the three required elements to prove that the majority of the duties of the two positions are similar. The petitioner is up against a school district which also understands the law and, often deliberately designs a new position to ensure that it is in a different tenure area than the abolished position, that they do not share the majority of the same duties, or require different certifications, skills, or experience. Nonetheless, SAANYS will review and analyze such cases and advocate before the commissioner and in New York supreme court any case which merits litigation.
You and the Duty of Fair Representation
This month’s article is related to the bargaining unit specific topic of the Duty of Fair Representation (DFR). There are many benefits to being a member of a SAANYS bargaining unit, including the ability to negotiate a contract with the employer and control the terms and conditions of employment for all employees in the unit. This is meant to ensure that the employer cannot play favorites with basic terms of employment including pay and leave.
However, with the power to negotiate a contract for all employees in the unit comes certain responsibility. The responsibility is on the unit to represent all of its members fairly in all manners of unit representation including, disciplinary matters, grievances/improper labor practice claims, and contract negotiation. If the unit fails to do this then it may be subject to violations of the DFR law. Most frequently these issues arise when the relationship between the unit and an individual member deteriorate.
The DFR law is enforceable by the State Public Employment Relations Board (“PERB”) and through that the state court system. Simply put, the DFR is a requirement on the part of units to treat all members of the unit fairly and equally in decisions relating to the unit as a whole. To prove a DFR, the aggrieved individual must show that the claimed offensive activity, or lack thereof, which forms the basis of the charge is deliberately unfair, arbitrary, or made in bad faith. This definition is intentionally left vague to enable PERB to judge cases based on the individual circumstances associated with each case. However, PERB has ruled that incompetence, even if pervasive, is not enough to justify a DFR claim if not motivated by bad faith. Therefore, this has limited successful DFR claims to situations where the unit has not acted neutrally toward the effected member, but actively against them. Note, there are no grounds for a DFR if you testify truthfully against another unit member in a court of law or disciplinary matter.
As a unit the safest way to avoid a DFR is to treat every member of the unit with respect and fairness when it comes to the contract. Threats of DFRs typically occur when an individual disagrees with the unit as to whether action should be taken against the employing district. It is important to check your unit’s constitution and bylaws to ascertain what review processes need to take place before deciding if a matter should proceed, either through the grievance procedure or some other manner. Some units have special committees to determine whether cases should be brought, whereas others require the vote of the entire unit. If your unit’s constitution and bylaws are silent on how to decide whether to go through with potential legal claims, it is best to err on the side of caution and have more than one person make the determination, as opposed to just the unit president. As long as it can be demonstrated that there was a rational reason why the decision was made that was not motived by bad faith, then there is no violation of the duty, even if people may disagree with the decision.
It is important to note that the DFR only applies to individuals in their capacities as a unit leader or the unit as a whole, not to individuals in their personal or professional capacities. Therefore, issues unrelated to the unit are not subject to the DFR law. For example, if you perform a criminal or civil act upon another unit member you are liable in criminal and civil court.
If this issue even begins to arise it is best to immediately call the SAANYS Legal Department and have either a SAANYS attorney or negotiator step in to head off any potential issues. As always, if you have any concerns or questions about this article please email or call the SAANYS Legal Department.
Protecting Your Family
Leaving our loved ones behind when we die is not a topic any of us like to ponder, but it is important to ensure that we financially protect them to the extent possible. The Teacher’s Retirement System (TRS) does provide an option to designate a beneficiary in the event of your death. As the owner of the account, you have the option to designate whether your beneficiaries receive the death benefits in a lump sum or in periodic payments. It is up to you to consult with your beneficiaries and financial advisors to determine which option best suits their needs.
The payment option you choose will remain in place unless you send in an “Election of Retirement Benefit” form that changes the option within 30 days of your effective date of retirement. But what happens if you sign the form, but you die before TRS receives the form?
While the situation does not often occur, it has on several occasions and the courts have ruled on this issue. When a change of benefits election does not reach the TRS board until after the retiree’s date of death even though it’s within the 30-day period allowable for changes, the change is not honored. This is because TRS regulations requires any election to reach the board in order to be effective. If it does not reach the board until after the date of death, it’s considered to be an invalid election because the communication to the board did not happen within the retiree’s lifetime. Applications that reach the board on the date of death are honored. The courts have upheld this interpretation.
Surprisingly, this information is not contained within the materials that TRS distributes. In fact, SAANYS recently dealt with a situation on this topic where the notice to the retiree did not indicate that a change in election of benefits needed to reach TRS before the member’s death. On the TRS website, there is a section called “Making the Right Choice” that discusses what you should consider doing “If you are critically ill and your life expectancy is less than one year.” Strangely, that section also fails to indicate that an election to retire or for benefits or change of benefits must reach TRS during the member’s lifetime.
At the risk of being morbid, this quirk in the law illustrates a little known, but important point. If you decide to elect to retire or change a benefits election, do not delay in sending the paperwork to TRS. Send it out as soon as possible and make sure that it goes via overnight mail to avoid unwanted consequences. As always, SAANYS is here to assist you through the retirement process and in the event that there is a problem with the retirement system.
Update on NYSHIP Litigation
SAANYS has been receiving a number of calls about the status of the Department of Civil Service’s rule that employers who offer health insurance through the New York State Health Insurance Plan (NYSHIP) are no longer allowed to offer a financial incentive to employees in exchange for not taking employer offered health insurance if the alternate coverage also comes from a NYSHIP plan. Such a financial incentive is commonly referred to as a buyout and is a commonly negotiated benefit in collective bargaining agreements. Both SAANYS and NYSUT were involved in active litigation on the matter on behalf of bargaining units. The SAANYS case was dismissed on a procedural violation, namely the concept that the statute of limitations commences once the rule was issued and not when the employer admittedly first notified the administrators’ association of the rule. SAANYS appealed this unfair determination that associations have constructive notice of changes to regulations without having actual knowledge of the changes. The Appellate Division, Third Department, disagreed with SAANYS’ interpretation that the commencement of a statute of limitations should be when the association has actual knowledge of the change in regulation. SAANYS then attempted to bring the issue to the state’s highest court, the Court of Appeals, which declined to hear the issue.
Procedurally, the issue was not dead, however. NYSUT’s cases were heard by a different judge, who ruled that the prohibition on the buyback was impermissible as a matter of law. The state appealed this decision and oral arguments were heard in October 2015. The Appellate Division, Third Department, overturned this decision and the prohibition was once again legal in the spring of 2016. In an interesting turn of fate, NYSUT requested reconsideration of the matter from the Third Department, which overturned itself and buyouts were once again legal as of June 2016.
Complicating an already convoluted scenario, the state then requested that the Third Department review the matter yet again and allow the matter to head to the state’s highest court, the Court of Appeals. The Third Department denied this attempt at a subsequent appeal this past September. Unfortunately, the state has the ability to plead its case directly to the Court of Appeals. Should the Court of Appeals deny the appeal, the prohibition on buyouts will be officially illegal and people may be reimbursed for the buyout payments denied for the past few years, depending on their collective bargaining agreements. If the Court of Appeals decides to hear the case, papers will be submitted and it will be approximately another year before the issue is finalized. Throughout this matter, SAANYS has been working closely with NYSUT, providing insight and support. Should this matter proceed to the Court of Appeals, the SAANYS Legal Department will submit its own brief in opposition to the buyout.
In the meantime, buyouts are legal as a matter of law. Many districts have decided to pay out the money held in escrow while these cases are pending. Other districts are telling their employees that the money will not be paid out until the Court of Appeals has made a determination and the case is finally concluded without possible reversal. Both stances are technically legal and SAANYS cannot determine the reason why certain districts are paying, while others are waiting. A word of caution needs to be expressed to bargaining units that SAANYS has received reports that some districts are claiming an inability to give fair salary increases during negotiations because they have paid out years’ worth of buyouts at once. This is clearly an excuse that needs to be challenged. Districts should have been budgeting for this event and holding the money in escrow. Any employer who claims that this issue is impacting finances is either attempting a trick or did not do a proper budgeting job. In either event, it is strongly recommended that proof of the budgeting be provided if this is claimed.
Also on the horizon is legislation pending the governor’s signature that will prevent the Department of Civil Service from interfering with collective bargaining through shady rulemaking like this in the future. When this legislation becomes law, it will only address the issue going forward and not the years of lost buyback payments. Thus, both the legislation and the pending litigation are of the utmost importance to our members. SAANYS is closely monitoring this issue and will continue to provide updates as it progresses.
Audio Recording in the School House
Many times while having a meeting in a classroom or during an investigation, you might feel the need to record someone or feel that you are being recorded by someone. In light of this, the SAANYS Legal Department would like to lay out a few of the basic rules regarding audio recording in New York State and the school setting. In case of any actual controversy regarding audio recording, please be sure to consult the SAANYS Legal Department as soon as possible.
Generally, recording a conversation in New York is permissible. New York is a one party consent state, meaning that only one participant in the conversation must consent to, or even know about, the audio recording, and that participant may be you. This can be a benefit or a hindrance to SAANYS members because while you may record a conversation that you are in without the other party’s consent or knowledge; other school actors such as teachers, students, and community members may record a conversation that they are privy to without your knowledge. Moreover, when making an audio recording of a conversation on school property, be aware if the board in your educational institution has a blanket policy against audio recording on school premises.
In instances where you know you are being recorded, it is important to have a copy of the full recording in the event that a segment of the conversation is used against you out of context. It is recommended that, if you know that you are being recorded, you either ask for a copy of the full recording or make a recording simultaneously.
If you are not a participant in a conversation you may not record it, this would be akin to wiretapping. However, a number of exceptions exist to this rule including: a) public meetings, such as school board meetings are recordable due to New York’s open meetings law; b) recordings made by law enforcement personnel engaged in the conduct of their authorized duties; c) security system recordings where a written notice is posted on the premises stating that a video surveillance system has been installed for the purpose of security; and; d) video surveillance devices installed in such a manner that their presence is clearly and immediately obvious.
The rules regarding audio recordings further diverge in the collective bargaining and unit settings. In these areas, audio recording is generally not permissible during collective bargaining negotiations and when an employer is conducting an employee investigation.
During contract negotiations, if the parties do not mutually agree to a audio recorder being present, then the presence of one constitutes a failure to bargain in good faith. This is because contract negotiations by their very nature involve a tumultuous process with a continuous back and forth between the parties. In this type of setting, heated words may be exchanged and often times there are various tradeoffs.
In the context of an employer/employee investigation that could result in discipline, the terms and conditions of discipline are a mandatory subject of negotiation, meaning the association can always negotiate or demand to bargain regarding the parameters for discipline. This encompasses the issue of recording investigative meetings between employer/employee. More importantly, this means that the current investigation procedures are in place unless they are negotiated or mutually changed. In these cases members should look to the past practice of the employer or a negotiated policy regarding audio recording. If the past practice has never involved recording during employee investigations for the unit, it may not start unilaterally for an individual member. It is an employer violation of a past practice if an employer uses audio recording technology during an employee investigation, when never having done it previously.
As one can gather, the rules for audio recording in the school setting are complicated. Therefore, please be aware that when dealing with any audio recording issue it is advisable to consult a SAANYS attorney or labor relations representative before making any type of decision.
FMLA: When and How it Can be Used
Taking an extended period of time off in order to deal with a health issue is often a scary and confusing time. To take some of the worry out of the process, employees are entitled to up to twelve weeks of unpaid leave per year pursuant to the Family Medical Leave Act (FMLA). While FMLA leave is unpaid, it does require that all group health insurance benefits be maintained during the leave. Unfortunately, the promise of job security can also result in additional stress for those who are not familiar with the process.
FMLA is for individuals who either directly suffer or must care for a family member suffering from a “serious health condition.” This may either be something joyous, like the birth or adoption of a child, or an illness, injury, impairment, or physical or mental condition that involves inpatient care and subsequent treatment for the inpatient care or continuing treatment by a health care provider. If it is an injury or illness, there are legal requirements as to the frequency and nature of the continuing treatment in order for an illness or injury to qualify for FMLA. An employer has the right to request medical certification to prove that an employee qualifies for FMLA. Additionally, if FMLA is used for a personal illness or injury, the employer has a right to request a medical certification that the employee is fit to return to work.
FMLA leave may either be requested by an employee or designated by an employer for a long term absence. If the employer designates a leave to be under FMLA, the twelve weeks does not commence until the employee is put on notice of such designation. For example, if an employee is out using sick leave for three weeks with no return in sight when the employer designates the leave to be under FMLA, the twelve weeks would start on week four and not on the date of the first absence.
One of the biggest points of confusion with FMLA is the concept that it is unpaid. If an employee has accrued leave time or there is another provision within the applicable CBA providing for paid leave, an administrator may be paid through these methods while on FMLA leave at the designation of either the employer or the employee. This being said, the employer is the only party who may decide whether accrued time runs separately or concurrently with the unpaid FMLA leave. In other words, if an employee has eight weeks’ worth of accrued time, he or she does not automatically have twenty weeks available to take off. Only the employer may decide whether there will be twenty weeks (eight paid and twelve unpaid) or only twelve weeks (eight paid and four unpaid).
FMLA frequently arises in situations of maternity/paternity leave. Both the birth parent and the spouse are eligible to take FMLA to care for a newborn. However, in situations where spouses are employed by the same employer, the amount of leave that may be taken due to the birth is limited to a combined total of twelve weeks. Further, in situations relating to childcare leave for the non-birth parent, whether an administrator may utilize sick leave will be limited to what has been negotiated within the applicable collective bargaining agreement (CBA). Some CBAs provide for unlimited use of sick leave in order to care for family members, while others limit the use to a certain number of days per year. Should you fall under the latter, then any additional paid time off will have to come through the use of accrued vacation or personal time.
Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under an attendance policy.
There are many additional intricacies involved in FMLA leave, which the employer is obligated to notify the employee of at the time the leave is being applied for. The employer’s human resources department is the best area to address any initial questions; however, SAANYS is happy to discuss any further questions that may arise.
The Dangers of the Social Network
Social networking is everywhere. It is common to find parents, children, coworkers, and even the elderly on the networks across the social media world, on sites such as Twitter, MySpace, Facebook, YouTube, and LinkedIn. With social networks, people across the world have access to tools and options that were previously non-existent. However, there are just as many new opportunities to get into potential danger as there are to connect.
Trouble from your use of social media comes in two forms: (1) usage and (2) content.
Usage related problems stem from an administrator’s improper use of employer-owned equipment. If you are using a desktop, laptop, tablet, cellphone, email address, or other technology that is purchased and/or paid for by the district, then you have NO expectation of privacy. This means that your employer may go through its property to see your browsing history, etc. If your employer has an acceptable use policy that prohibits personal use of the technology or that you cannot use the technology for personal reasons during the workday, using social media on the equipment may result in discipline. It is important to check your district’s acceptable use policy to see what you can and cannot do with district equipment and/or during the workday. Even if there is a very liberal policy in place, it may be wise to limit your social networking activities to personally owned pieces of equipment in order to best protect your personal privacy.
As for content related problems, one thing we often forget while having fun on social networks is that almost anybody can see what we are doing. While we are tagging photos of what we did on the weekends or using social networks on company time, it can be easy to forget that someone at work may see this and the result could cost you your job. Checking your privacy settings and acceptable contacts to make sure they are people you actually want to view the content you are posting on your personal social media accounts are good ways to limit potential damage.
It is also important to remember that there are some very good hackers out there. What student or angry parent would not love to get a photo of the school principal, or any other administrator, dancing on a table with a red solo cup in their hand? No one is saying that you cannot behave in that manner in private if you wish, however, being discreet and avoiding posting such activities on social media will prevent a whole host of problems down the line.
Another concern is the controversy with Facebook and their sharing your private information with third party companies. This is why you are shown a privacy statement when you install an application. The providers of these applications are third party companies and websites who could be able to access your private information such as your address or phone number. If they can get to it so can other individuals. Does this mean you should not have a Facebook or other social media account? Absolutely not, it means don’t put anything on social media that you would not mind the general public having access to. There is no harm in declining to post your home address or placing a false address in your profile to throw people off.
While social media has good opportunities for networking, job-seekers should be careful about what they say or reveal on any social network. Many studies have shown that a significant percentage of employers use social media to conduct their own “background” checks. If a job-seeker applies for a serious job, certain information, conversations, or even flippant comments could compromise hiring status.
The Washington Post recently released an article about background checking services that now exclusively run social media background checks for corporations and companies around the country. Casual drug references, various photos, or jokes posted as a profiles status – could all be things that could and do prevent job-seekers from being hired.
There are documented cases that take this even beyond looking for a job, to being fired from a job for what is on a social media profile. A teacher in a Pennsylvania high school was fired for a photo she posted of herself dressed as a pirate, holding a plastic cup, and labeled “drunken pirate.” She was fired for promoting underage drinking.
In New York, the state’s highest court, the Court of Appeals, has held that the off-duty conduct of a tenured educator may be the basis of formal discipline if it (1) directly affects the performance of professional duties, or (2) without contribution by school officials, becomes the subject of such public notoriety that the educator cannot discharge his or her duties. If you are tenured, you have certain protections before you can be disciplined for your conduct on social media, but people in probationary capacities must be extra diligent or risk potentially being let go for being a poor role model.
Regardless of whether the charges were fair, the fact is, social media is public. It’s something anyone can check, including employers who may have hired the unlucky, unsuspecting applicant who did not consider taking down a similar photo of herself out with friends. It may be a harmless, fun photo to the social media user, but to an employer it could be grounds for being scratched off the list of potential hires, or even grounds for discipline or even being fired. So, how do you get around this?
Be careful about what you do, how you behave, and what you say in a public, social forum – especially when job-hunting. Don’t leave yourself open to professional scrutiny with possibly questionable photos, comments, or other content. Go the extra mile and create a dazzling social media presence. Ensure that you appear within a context of social media, the same way you would like to appear to an employer. Participate in industry groups. Post intelligent information, discussions, or recent goals that have been accomplished. Don’t feel as though you need to isolate yourself, just protect yourself and your career at the same time. And, as always, if you ever encounter problems, contact the SAANYS Legal Department.
US Supreme Court Weighs in on Duration of Retiree Health Insurance in Collective Bargaining Agreements
SAANYS News & Notes March 2015
As SAANYS members know, the legal department considers retiree health insurance a significant priority for bargaining units and has had several victories in this area within the past few years. On January 26, 2015, the United States Supreme Court issued a decision potentially impacting how long retiree health insurance benefits remain at a fixed rate under collective bargaining agreements.
Under traditional principles of contract law, if there is a dispute surrounding a term or condition contained within a collective bargaining agreement, the first step a court must take is to look at the contract and determine if the language is clear and unambiguous. This is why SAANYS has repeatedly emphasized the importance of clear contract language, particularly when it comes to stating that the level of retiree health insurance contributions are fixed for the life of the retiree. If the language is unclear, contract law requires that the courts look to outside evidence, such as bargaining history and testimony from the parties involved, to determine what the intent was at the time the provision was negotiated. Thus, careful notes should be taken during negotiations and kept by the unit for posterity.
These rules have not changed with the recent decision. What has changed is a longstanding presumption that, unless clearly specified in the collective bargaining agreement, retiree health insurance contributions towards premiums are fixed for life at the rate contained within the collective bargaining agreement at the time of retirement. The theory applied by the courts used to be that the parties to a collective bargaining agreement intended for retiree benefits to remain at a fixed rate for life in consideration for giving up other benefits, such as higher salaries, while serving as active employees. According to the supreme court, such an intention will have to be demonstrated through outside evidence if it is not clearly spelled out in the language of the agreement.
According to the Supreme Court’s decision, the federal rule is now that if the duration of retiree benefits is not clearly spelled out within a contract and the intent of the parties to have the contribution levels remain fixed cannot be proven to a court’s satisfaction, retirees may be subjected to negotiated changes in contribution amounts contained in collective bargaining agreements that are negotiated by active members of the bargaining unit after their effective dates of retirement. In other words, if you retired in 2005 and the collective bargaining agreement at the time provided for 100 percent coverage by the district, but didn’t set forth that this level would be maintained for life, and your former bargaining unit negotiated a decrease in the district’s contribution to 90 percent starting in the 2015/2016 school year, you may be suddenly paying 10 percent towards your health insurance.
Before anyone panics, it is not entirely clear how this decision will impact collective bargaining in New York. SAANYS has always applied the traditional contract law in victories on the retiree health insurance front, so an analysis on any future cases will not significantly change. The supreme court also held that, if the contract language is unclear, a piece of outside evidence the courts should consider is the industry standard on the topic. In New York public sector education, the standard is that retiree health insurance contributions are fixed for life at the rate specified in the collective bargaining agreement at the time of retirement. Finally, it is unclear whether New York’s courts will even adopt the supreme court’s ruling that current bargaining unit members can negotiate changes that will impact retirees because the law in this state is very clear that retirees are not considered bargaining unit members and have no power during negotiations.
SAANYS will keep a close watch on this topic and will update you on this important area of law as it develops. In the meantime, there are several things you can do to prevent or minimize the impact of this ruling on your unit’s current and future retirees:
1.) Make sure your collective bargaining agreement’s provisions concerning retiree health insurance are clear and unambiguous, especially concerning the duration of the benefit. If it is not, or if you have any questions, SAANYS lawyers and negotiators are here to help interpret and negotiate any clarifications during future negotiations.
2.) Keep detailed notes during negotiations. It is always suggested that someone be designated the official note taker during negotiations. These notes should be maintained by the unit leadership, passed down through the years, and not destroyed. SAANYS has encountered many times where such notes would have cleared up an issue from a historical perspective, both in collective bargaining and in contract grievances on a wide variety of issues.
3.) If your employing district either threatens or actually makes a change to retiree health insurance contributions, it is imperative that you notify the SAANYS Legal Department immediately. There are very limited timeframes in which to commence an action against a school district and nobody wants to see someone negatively impacted for the rest of his or her life because the issue wasn’t raised in a timely manner.
As always, the SAANYS Legal Department is here to provide clarification and guidance if there are any questions or concerns.
A New Year Has Prospects
SAANYS News & Notes February 2015
The new year ushers in a series of meetings for some of the twelve SAANYS regional organizations. Members of SAANYS counsel’s office will be attending those meetings in part to update the regions on changes that could affect upcoming local bargaining unit negotiations with their various employers. However, much of the information discussed will invariably be relevant to those units and their members who are not expected to be involved in collective negotiations this year.
Much of the discussions will involve such imperatives as effective preparation for collective negotiations, the importance of planning ahead in anticipation of potential occurrences at the negotiating table, and setting firm rules of conduct and protocol so as to facilitate as smooth a negotiating process as possible. A byproduct of these general topics is often some detail about changes in the law that effect particular items in negotiations.
For example, acknowledgment of the current economic and political climate at these meetings will lead to discussion about how to meet the goals of unit negotiators in terms of financial gains for their current active members. The conversation will turn to creative methods being employed on certain topics such as taxable and non-taxable fringe benefits. Of interest to most units are those related to paying for health care above and beyond basic insurance coverage, including flex spending accounts, health reimbursement arrangements, health savings accounts, and medical savings accounts, all of which share much of the same traits but have nuanced differences to meet differing financial needs. From there, the discussion will likely touch on the effect of Obamacare, also known as the Affordable Care Act (ACA), on these items. In some instances for 2015, the ACA places new limits on employer contributions and changes the tax implications on these negotiated benefits.
Inasmuch questions arise about the tax implications of both non-health care and health care related fringe benefits. Separate from the health care related items mentioned above, non-health care related items may include reimbursements for personal cell phone use on work-related matters, use of one’s car, or payment of life insurance premiums. It is best in negotiations to follow the general rule that if an item was not expressly created by the legislature to have tax free benefits, it likely does not. Thereafter, you can get specific as to which items need to be precisely delineated as taxable or non-taxable benefits. Critical to remember is that what was considered of value in the previous agreement, which may have been taken away by a legislative act like the ACA, can and should be negotiated back into your contract in one form or another. Don’t settle for the fact that it is gone. Demand something in return.
Similarly, the discussion of the current political and economic climate will raise particular questions from those preparing to retire or merely looking down the road toward retirement. Their interests may involve the pensionability of particular benefits provided in their collective bargaining agreements. Members in the Teacher Retirement System (TRS) currently occupy six tiers with those joining the system after April 1, 2012 labeled as Tier 6 members. The TRS has recently issued clarification on certain particular negotiated benefits that retirees believed were added to their pension calculations but found that they were not.
The general rule that has been applied to the tiers 3 through 6 had always been that to be included in a pension, the payments had to be reasonably incidental to the work necessary to complete the job of the title, was cumulative and continuous year after year, and was not in the mode of a bonus design to augment a final average salary. Questions have arisen about negotiating tenure stipends, merit pay, longevity bonuses, and the like, as to how they figure in to a member’s final average salary, if at all. Each provision or proposal in your negotiation involving such an item must be scrutinized and made clear. Often, bargaining units have proceeded on the presumption that its interpretation is the same as that of the district, that a particular item is part of base salary and thus added to a pension calculation. That is always a dangerous presumption but in this case is also an irrelevant presumption. Even if the parties agree on an interpretation of a contract, such agreement does not bind the TRS. So, as noted above, if you believed something had pensionable value that it turns out may not, do not despair, it merely presents an opportunity to negotiate its lost value back to your members in another form.
Looking positively, SAANYS will impart at these regional meetings the good things that can come from the changes that come with a new year. We hope to see you there.
SAANYS News & Notes January 2015
Prior to the administration of a state examination, it is important that administrators fully understand the state testing procedures that must be followed and the consequences that may be imposed for not following such procedures. Each district receives testing materials from the Department of Education/Board of Regents that includes examination day instructions and exam material. Thoroughly reading the materials that are provided will help ensure that proper procedure is followed. With the abundance of materials received along with the amount of substance within the material, it is often hard to fully understand what procedures must be followed. Some of the major issues that continue to arise during testing procedures include fraud. It may not seem like fraud is being committed, but those involved in testing procedures need to be careful to ensure that they are not unintentionally doing so. The consequences can lead to termination and revocation of licenses. It is the responsibility of the principal for all aspects of the school’s administration of state exams, and principals are required to take appropriate measures to prevent, as much as possible, and to investigate all irregularities, in association with the administration and scoring of these exams.
According to the rules of the Board of Regents, fraud includes: the use of unfair means in taking an exam; giving aid to or obtaining aid from another person during an exam; alteration of any Regents credential; and intentional misrepresentation in connection with exams or credentials. Fraud also includes mishandling of testing materials by allowing them to be released prior to the date of the scheduled exam, and also by retaining possession of any exam material after scoring has been completed and material returned to SED. Further, Section 225 of the education law makes fraud in exams a misdemeanor, whether perpetrated by a student, by a teacher, by an administrator, or by any other person.
The commissioner’s regulation puts into practice Section 225 of the education law. The regulation expressly lists what would constitute misconduct when handling state examinations. It includes, but is not limited to, duplicating or keeping any exams without written approval from SED. This presents a danger area for some administrators. For example, your district may have instituted a program for test preparation at the various grade levels. If you are involved in such a program and set aside some unused exams because you wish to review them to get an idea of where or how your curriculum matches up with the test materials, you are at risk of being accused of cheating.
So much more can go wrong. In the bustle of the daily environment, those unused materials can be misplaced or lost, and you will be immediately, almost inex-cusably, or as we say in the law, strictly liable.
Testing improprieties by administrators are handled by the SED’s security unit or “TSU.” School officials and personnel are required to report any testing misconduct by an educator or other person involved in testing. Some examples of improper testing conduct that must be reported are: suspected or confirmed cases of a school official giving aid to students during a state exam or altering student responses on an exam paper; cases in which a school official alters or otherwise misrepresents a student’s earned exam score during scoring, recording, or reporting; and any instance of an administrator instructing another administrator to alter or interfere with a student’s exam score.
Proctors, teachers, and administrators who do not follow the policies and procedures of SED may face disci-pline. Teachers and administrators who are involved in inappropriate conduct in regards to administering and scoring state exams may be subject to disciplinary actions in accordance with Sections 3020 and 3020-a of education law, or they may face disciplinary actions against their certification pursuant to Part 83 of the regulations of the commissioner of education.
If you have been accused of committing fraud during the course of state testing or have questions relating to testing administration, contact a SAANYS attorney immediately and we will be more than happy to assist.
SAANYS Enters the Fight to Save Tenure
SAANYS News & Notes December 2014
The concepts of tenure and seniority-based layoffs (commonly referred to as “last-in, first out” or “LIFO” statutes) have always been controversial, and critics often voice their concerns loudly, but to little avail. Then the landscape seemingly changed this past summer, when a trial court in California determined that its state tenure and seniority-based layoff statutes were unconstitutional as they negatively impacted students in lower income districts, often heavily populated by minorities, at a greater rate than students in affluent areas. This case, Vergara v. State of California, is currently on appeal, but has started a wildfire of attacks against tenure and seniority that quickly reached New York.
In the wake of Vergara, two cases, backed by public interest groups, were filed in New York challenging the state tenure and seniority laws. Davids v. State of New York was commenced in Richmond County Supreme Court and Wright v. State of New York was brought in Albany County Supreme Court. The two cases were consolidated into a single action in Richmond County Supreme Court. Both cases challenge the constitutionality of New York’s various statutes dealing with tenure, seniority, and APPR, on the basis that they allow for the retention of “ineffective teachers,” thereby denying students the “sound basic education” provided under the New York State Constitution.
These actions only named the State Education Department, Commissioner King, and the Board of Regents as defendants, leaving the very individuals protected under the statutes without a voice. Accordingly, NYSUT, UFT, the City of New York, and several individual teachers, petitioned the court to become defendants and are now named parties. Interestingly, neither of the lawsuits mentioned the fact that school administrators are also bound by the same laws that are being challenged. A finding that teacher tenure and/or the seniority and recall statutes are unconstitutional would mean that school administrators would also lose the rights to tenure and seniority-based layoffs. Therefore, on behalf of representative members, SAANYS has also intervened in this important litigation and is actively defending the rights of all admin-istrators to earn the due process protections afforded under these statutes. SAANYS and all of the other defendants have filed motions to dismiss the litigations and, under the current scheduling order, will have oral argument as to why the cases need to be dismissed in mid-January 2015.
Prior to the decision in Vergara, changes to tenure and seniority systems throughout the United States came primarily through legislative action within each individual state. Given the complexity of public education, courts throughout the country have recognized that such matters remain best left to the people’s elected representatives. This is because the courts are ill-equipped to resolve the social, political and economic issues, and resulting controversies surrounding public education. The legal term for concepts such as this is “political question” and it is one of the basis used by SAANYS in its motion to defeat these meritless lawsuits. As any faithful reader of News & Notes over the years has learned, New York’s legislature is continuously revising the education law surrounding the retention of qualified teachers and administrators. In the past five years, SAANYS has provided its members with continuous updates on changes made by the legislature on topics such as the APPR system and Section 3020-a hearings.
Additionally, the lawsuits fail to connect the state to the implementation of the statutes, as ultimately it is the local school boards who have the power to grant or deny tenure, bring about disciplinary hearings to tenured educators, and implement layoffs. In the past twelve years, the New York State Court of Appeals has rejected other attempts to strike down these and other education law statutes on constitutional grounds, because of the very same defects in the pleadings.
Furthermore, the plaintiffs have no standing to bring the lawsuits. With the exception of one plaintiff in Wright, no other plaintiff in either action even alleges their child has been instructed by an ineffective teacher, thereby precluding any alleged injury. Additionally, not one plaintiff is in the “zone of interest” of the challenged statutes. Specifically, the legislative history and case law surrounding each of the challenged statutes clearly states that the purpose of the statutes in question is to protect educators, not students or their parents.
SAANYS supports the concept of tenure and the current system of managing layoffs for all educators, not just administrators, and will continue to vigorously defend these rights. Without these rights, educators will be subject to the political whims of their employing districts and will be forced to make the difficult choice between self-preservation and what is educationally correct. While SAANYS is confident that our members will continue to put the needs of students above their own, SAANYS has no intention of having its members placed in such a position without a fight. Keep an eye on upcoming issues of News & Notes for updates on this important litigation as they arise, and feel free to contact the SAANYS Legal Department if you have any questions.
A Grievance, Improper Practice, and Court Action for Breach of Contract All in One
SAANYS News & Notes November 2014
SAANYS recently represented a bargaining unit in a dispute that contained many of the varied elements of litigation that SAANYS handles. It should interest a wide spectrum of bargaining units and individual members. The affected bargaining unit was a small unit of less than ten members. They have a collective bargaining agreement [CBA] with a grievance procedure that ends with a review by the board of education. SAANYS recommends that a grievance procedure always end with binding arbitration. The premise is that a final independent trier of fact will provide a fairer, if not more just, award. But in this case, the fact that the grievance procedure ended with the board, opened the door to a tangle of litigation that needed to be carefully thought through.
The initial issue started as a “pension-ability” question that was raised when a unit member discovered that her base salary had been reduced by a corresponding amount that was carved out and put into a separate line item on her pay stub. Pension-ability is a term often used in this industry meaning money that can be calculated into your final average salary for purposes of determining your pension benefit. Those near retirement would have their interest piqued by this because such a change in base salary could result in a reduction in the calculation of a final average salary and therefore negatively affect a pension payment. As a pension-ability dispute, the affected members could have sought relief in court. But since it was also a general change in salary that was negotiated into the CBA, the grievance procedure in the CBA was implicated. The unit prepared a grievance for all similarly affected unit members. Only two members were affected. While the unit was preparing that grievance, the district completely removed the amount in the line item from both members’ pay. So now in addition to the grievance, the unilateral change in a term and condition of employment, which was the reduction in negotiated salary, was an improper practice (IP), that simultaneously had to be commenced at the Public Employee Relations Board (PERB). The grievance had to be amended because it was both a pension-ability question and a salary grievance.
There’s more. This unit stood with three sources of remedy, which meant three statutes of limitations had to be met. First was the grievance, which had to be commenced within 20 school days of the district’s actions. The second was the IP at PERB that had to be brought within four months of the district’s actions. The third was the breach of contract action that typically would have a six year statute of limitations. However, there is an interesting nuance that could have dramatically shortened the statute of limitations to four months. The reason was that the pension-ability question was subsumed by the subsequent reduction in salary, temporarily taking the question out of a court proceeding and putting it squarely back into the grievance procedure.
Temporarily because, as noted above, the grievance procedure ended with the board of education. So that meant that the same entity that was being pursued in the grievance had the final say under the contracted grievance procedure. But fear not, there was still hope. The law provides what is called an Article 78 proceeding where the actions of a political subdivision of the state, like a town, county or, as here, a board of education, can be challenged in the supreme court as arbitrary, capricious, irrational, or contrary to law. In this case, the board’s decision on the grievance could raise that action. Therefore, if the board decided the grievance in its own favor, the unit could bring an action under Article 78 with a statute of limitations of four months from the date of the board’s decision.
The grievance proceeded and SAANYS presented the unit’s position to the board of education. What happened next was not unusual but added to the complexity of the situation. The board did not give a formal decision but instructed its counsel to negotiate a settlement that essentially provided the grieving employees’ the remedy they sought. But during the course of the “back and forth” of the wording of the settlement, the question lingered as to the four-month statute of limitations on the potential hybrid Article 78/Breach of Contract proceeding. The answer is that the board had not yet acted on ratifying the settlement agreement. Had the board rejected the negotiated settlement agreement, a new four-month statute of limitations would have commenced from the date of its formal refusal to ratify. Fortunately, the board did ratify the agreement – bringing the drama to a conclusion. This situation reminds us of the comical image of the frog who is being eaten by a bird, but reaches out of the bird’s mouth and chokes the bird so that he cannot be swallowed. Never give up – often SAANYS can help members find options that are not readily apparent at the time.
Arbitrator Enforces Anti-Abolishment Provision
SAANYS News & Notes October 2014
SAANYS successfully litigated a case for the Elmira Schools Supervisory and Administrative Council (ESSAC) against the City School District of Elmira (the district) for violating the terms of a May 2012 Memorandum of Agreement (MOA). During the 2011–12 budget process, the district eliminated four ESSAC positions as part of budget cuts. With the assistance of SAANYS, ESSAC negotiated an anti-abolishment clause to protect the remaining 32 ESSAC member’s jobs. Specifically, SAANYS negotiated the following contractual provision: “In exchange for the association waiving the aforementioned contractual rights during the 2012-2013 school year, the district agrees that no positions contained within the association shall be abolished or positions unfilled during the 2012-2013 school year only.”
ESSAC bargained away guaranteed compensation to maintain unit jobs. Specifically, ESSAC agreed to waive 5/6th of its member’s 3.9 percent salary increase for the 2012–13 school year, and limit the number of unused vacation days members could cash in that school year from seven days to one day. These compensatory sacrifices were made on the district’s promise that the 32 positions within ESSAC as of May 2012 would remain filled during the entire upcoming school year.
This MOA was a short-term job security provision. However, shortly after reaching this agreement, the superintendent negotiated with an ESSAC member a separate employment contract for the member, a director, without the knowledge of ESSAC. The superintendent and the director reached an agreement in July 2012 that removed the director position from ESSAC, thereby reducing the number of positions below 32 and breaching the MOA. ESSAC was unaware of the secretly negotiated individual employment contract with the director until late November, when ESSAC leadership demanded the director pay his ESSAC dues. Upon learning that the director refused to pay unit dues because he was no longer a member of ESSAC, ESSAC filed a grievance in December 2012. With the assistance of SAANYS, the case progressed to the arbitration stage before Arbitrator Nancy Eischen in the summer of 2014.
SAANYS prosecuted the grievance at the arbitration stage for ESSAC. Arbitrator Eischen held that the district violated the MOA by reducing the agreed upon number of positions below 32 when the district unilaterally negotiated an individual employment contract with an ESSAC member, which also constituted an improper practice of “self-dealing.” Arbitrator Eischen considered the breach and fashioned the remedy to make ESSAC members whole again. Arbitrator Eischen ordered the district to pay ESSAC members the 5/6 salary increase and the ability to cash in 6 more vacation days this year, both items were forfeited as part of the original MOA. The remedy SAANYS was able to achieve for ESSAC shall result in a $180,000 award for the ESSAC members.
School districts are constantly facing budgetary constraints living within the property tax cap, and units may be involved in negotiating agreements to preserve the positions of its members. It is important to understand what elements should be included in anti-abolishment provisions and what rights you have if such clauses have been violated. When negotiating an anti-abolishment clause, such provisions must be explicit, unambiguous, comprehensive, and of relative brief duration. Further, the agreement should be clear on how any disputes will be resolved. We recommend such matters be processed through the grievance procedure, which ultimately ends in binding arbitration. Having a detailed grievance procedure in a CBA is very important to protect the unit’s rights when a violation has occurred.
Please contact SAANYS if your unit is considering negotiating an anti-abolishment clause. SAANYS attorneys will be happy to provide you with guidance in this process.
Contract Grievances: Who Controls a Grievance?
SAANYS News & Notes September 2014
Terms and conditions of employment are controlled by collective bargaining agreements (CBAs). Violations, misapplications, or misinterpretations of such contracts are handled through the CBA’s grievance procedure, if there is one. Otherwise, such breaches are litigated in court as a breach of contract action. This article focuses on the arbitral process found in many contracts, and whether individual unit members or only the unit can prosecute contract grievances.
Questions often arise about when an alleged contract grievance may proceed to the arbitration stage and who decides that it will be so prosecuted. The source of right involving contract grievances is the CBA, and particularly, whether the CBA has a negotiated grievance procedure.
Some CBAs do not provide for arbitration for settlement of contract disputes at all. The only way to challenge breaches of those CBAs is to sue in court. Other CBAs contain grievance procedures that do not culminate in arbitration. In those cases, either the superintendent of schools or board of education is the final decision-maker as to whether the grievance has merit or not. Similarly, some CBAs have arbitration, but it is only advisory, meaning that the decision of the arbitrator is not binding on the parties. Any grievance procedure that does not result in binding arbitration is viewed less favorably by SAANYS in litigating contract violations.
Moreover, there are many considerations involved in CBAs that contain binding arbitration provisions. Paramount with any grievance procedure is ensuring any grievance is timely advanced to arbitration within the grievance time frame. Also critically important, is who can prosecute a grievance at arbitration. The answer may not be as easy as one would think. First, check the CBA to see if it is stated as to who has the right to advance a grievance to the next level, particularly when it only impacts one member of the bargaining unit. Some CBAs are silent as to who has the right to file a demand for arbitration or otherwise advance a grievance. Other CBAs grant the right exclusively to advance a grievance to arbitration to the unit alone, to each member individually, or to either/both to prosecute. In the first instance, SAANYS recommends review of the CBA to determine who has the right to file a demand for arbitration.
Since the CBA is negotiated and enforced by the unit, SAANYS recommends that the unit have control of grievances at the arbitration/litigation phase in order to avoid questionable grievances going to arbitration. If an individual member were allowed to advance a meritless grievance to arbitration, it could be dangerous for the unit if the grievance is lost, creating an unfavorable precedent, especially if the unit was against the individual member filing for arbitration in the first place.
Surprisingly, some CBAs are silent as to grievance ownership at the arbitration stage, or any stage for that matter. Therefore, the unit leadership would also be wise to check its constitution and by-laws to see if there is a process set forth for processing grievances. For example, some constitutions and by-laws call for a “grievance committee” to process all grievances. Others call for a majority vote of the unit to proceed beyond any step involving the board of education. If the constitution and by-laws are silent, look at what has been the past practice associated with contract grievances. If the unit has not filed grievances before, and hence, has no past practice, we recommend that the unit set up an internal process in its constitution and by-laws. Then in the next round of collective bargaining, negotiate a clear procedure regarding ownership of grievances, especially at the arbitra-tion stage. Without explicit guidelines for who decides when to arbitrate a grievance, many units could potentially arbitrate grievances that lack merit. An arbitration on average costs around $10,000 in fees and attorney time. Hence, the decision to proceed to arbitrate also has financial consequences.
It is always recommended that a unit promptly call the SAANYS legal team if there is a suspected grievance, for an analysis of the merits and who may advance the grievance. Additionally, should your unit wish to set up an internal process for grievance adjudication, SAANYS would be happy to assist, including providing a sample constitution and by-laws for your reference.
Surreptitious Surveillance in 2014
SAANYS News & Notes May 2014
As technology surges forward through the seemingly daily innovation of smart phones, so has the ability of school district employees, students, and parents to document the world around them through video and audio recording. As these recording capabilities have improved, so has the frequency with which SAANYS members are confronted by legal issues relating to the recording of conversations (or video recording with audio). While the SAANYS legal department would never advise a member to surreptitiously record conversations with another, it is important that individuals understand both the federal and New York statutes that make recording in certain situations illegal.
Both the federal and New York “wire-tapping” statutes are referred to as “one-party consent” laws (see 18 U.S.C. 2511(2)(d); N.Y. Penal Law § 250.00.) Each permits the recording of a phone call or face-to-face conversation by an individual only if they are an actual party to the conversation. Generally speaking, regardless of the state, it is almost always illegal for individuals to record a conversation (1) to which they are not a party, (2) have not obtained consent to record, and (3) that they could not overhear without the assistance of some technology.
New York Penal Law § 250.00 clearly defines various terms related to the topic (“wiretapping,” “mechanical overhearing of a conversation,” “electronic communi-cation,” etc.), clearly encompassing the various ways in which information can be stored and sent (N.Y. Penal Law § 250.00). Given the definitions supplied by New York’s statute, consent is equally required to disclose the contents of text messages.
People v. Clark, a 2008 criminal case originating in Kings County, illustrates exactly how these issues might come to light within the context of the public school system. In September of 2005, an eight-year-old boy with autism, unable to speak and known to inflict bodily harm upon himself, required special bus transportation and the services of a personal bus aid (the criminal defendant in the case). Upon seeing her son return from school with “bruises and abnormal redness on his body, she put an audio recording device” in his backpack before placing him on the bus one morning. The defendant later moved to suppress the recorded conversation at trial, claiming that (1) she hadn’t consented to the recording, and that (2) the child was incapable of consent. Instead, borrowing from a federal court decision, the court held that “when a parent or guardian can demonstrate a ‘good faith, objectively reasonable basis to believe that it was necessary for the welfare of the child to record a conversation,’ a parent may consent to the recording on the child’s behalf and be exempt from liability under the federal wiretap statute.” (People v. Clark, 19 Misc. 3d 6, 8 (App. Term 2008)) .
Another example of the use of secret recording involved two different Long Island principals and the parents of a student who moved between two separate school districts. The student had significant disciplinary issues. The parents demanded a meeting with the respective principals. At the meeting with the middle school principal of one district and the high school principal of the other district, the parents surreptitiously recorded the conversations.The recordings were subsequently edited by the parents, their goal being to portray each principal in a negative light, and posted on Youtube.com. Twice, SAANYS demanded and facilitated the removal of the edited recordings from public access.
In light of the situations referenced above, administrators should be especially mindful of the potential that conversations with students, parents, teachers, and other staff can, and are more often, being recorded. If ever confronted with a question regarding “wiretapping,” please contact the SAANYS Legal Department for assistance at (518) 782-0600.
Position Abolishment and Its Consequences
SAANYS News & Notes April 2014
As we approach the finalization of school budgets, we revisit an issue that was discussed in this column over four years ago – the questions that arise when administrative positions are abolished or left unfilled as a result of terminations, retirements and resignations. Those questions most often include the subsequent transfer of unit work to remaining administrators or the transfer of unit work to personnel outside the administrative bargaining unit.
It is important to note that bargaining unit rights, sourced most often from the Taylor Law, are intended to protect public employees from the political vicissitudes of public employment. They are intended also to provide certainty in budget and planning for both the employer and employees. Therefore, certain aspects of the work must be negotiated through the bargaining unit to ensure that certainty and security. When an employer or employee organization takes action that cannot be taken until properly negotiated with the other party, an improper practice may occur. The Public Employee Relations Board [PERB] is the state agency that adjudicates these initial disputes.
A body of law has developed, defining when and how these transgressions occur. The abolition of positions and the resulting transfer of work is the focus of this article. Given the recent efforts of districts to trim administrative staffing and get more done with less, districts have taken to abolishing administrative positions. In some circumstances, it has been of genuine financial exigencies. In other circumstances, it has been a method of circumventing employee’s tenure rights without having to follow the statutory due process requirements under Education Law §3020a. Put bluntly, the district may find a way to isolate a highly paid administrator that happens to occupy a single tenure area or civil service position, abolish the position knowing there is no less senior person in the tenure area or civil service category, and thereafter fire the administrator and spread the work around the unit or transfer the work out of the unit.
When the aforementioned scenario occurs, two divergent legal bases are implicated. On the one hand, you have the tenure or permanent status rights of the individual whose position is abolished. On the other hand, you have the bargaining unit’s rights to protect its work by keeping it in the unit, and its right to demand impact bargaining regarding the effect on the terms and conditions of employment of the unit members who take on the duties. As noted above, PERB would adjudicate the actions related to the bargaining unit protecting the work and demanding what is called “impact bargaining.” The tenure rights of the individual are primarily adjudicated in appeals to the commissioner of education.
In an action before PERB related to the protection of bargaining unit work, the bargaining unit may challenge a district’s transfer of its work to a non-unit employee. In such an action, the bargaining unit would need to prove three elements. First, the unit would need to establish what is called a “discernible boundary” around the work. A discernible boundary would be found in the nature and frequency of the work the unit performed and, among other factors, a showing that the district saw the work as distinct to the unit. Second, the unit would need to establish the extent to which the work was exclusively performed by its members. Typically it is not enough to obviate the exclusivity of the unit’s work for a non-unit member to intermittently perform some of the work. Third, there are specifically enumerated non-instructional duties that are statutorily allowed to be transferred out of the unit. For example, Education Law 1950 lists technology related duties that can be transferred to a BOCES.
If the unit can establish the elements above, or the district merely abolishes the position and distributes the work amongst the unit members, then the unit must look at how the additional duties impact the terms and conditions of employment of its members. That means determining the effect on such things as work hours, work days, vacation availability, and effects on evaluation procedures to name a few. It can then demand impact bargaining and the district is required to negotiate.
The tenure area and civil service status issues raised by position abolishment by contrast are personal to the employee. The Supreme Court has held that a public employee can have a property interest in his position. Specifically, tenure or civil service permanence has property value to the employee that can be bartered or sold. They are constitutionally protected in that they cannot be taken without due process. Therefore, a position abolishment for a tenured or permanent employee must be scrutinized. It must be for reasons of efficiency or economy. Once that is established, the tenure area or permanent status of the effected employee must be examined to determine seniority and return rights under Preferred Eligibility List requirements in the education and civil service statutes. Note that the tenure area and civil service status questions apply to employees even if they are not in a bargaining unit. So it is important that even if you are not in a bargaining unit, that you maintain your SAANYS membership to have a more detailed expert analysis of your personal scenario only a phone call away.
SAANYS Victory Concerning Retiree Health Insurance
SAANYS News & Notes March 2014
Over the past few years, you have repeatedly heard from the SAANYS Legal Department that retiree health insurance is at the forefront of collective bargaining and negotiations. It cannot be stressed highly enough that a bargaining unit’s contract should explicitly set forth the benefits members will receive in retirement. Another recent example of unambiguous contract language helping a retiree comes from the Arlington Central School District in Dutchess County.
The collective bargaining agreement (CBA) between administrators and the district provides several different health insurance options administrators can choose between, including HMOs, and coverage under the New York State Health Insurance Plan (NYSHIP). The CBA also explicitly provides that the district is to offer health insurance in retirement to the administrators. Unlike many CBAs, the one at issue does not contain any restrictions or conditions precedent upon receiving health insurance in retirement. Specifically, there is not a service requirement of a set number of years to the district before being able to retire and receive health insurance.
NYSHIP itself contains a requirement that an individual subscribe for five continuous years in order to vest with the plan and receive retiree health insurance. Due to unforeseen circumstances, an administrator within the unit, who received health insurance through NYSHIP, needed to retire before vesting with the plan. The district approved the retirement and did not indicate that it would not provide the administrator with health insurance in retirement until shortly before her date of retirement.
With the assistance of SAANYS negotiator Bill Morrison and attorney Jennifer Carlson, the unit pushed the denial of health insurance through the contractual grievance procedure. At no point in time during the local level grievances did the district explain the reason why the administrator, who was paying full COBRA premiums for her health insurance upon retirement, was denied health insurance. An arbitration of the issue took place before Arbitrator Richard Curreri in November 2013. It was at that time that the district explained for the first time that retiree health insurance was denied partially because the administrator had not vested with NYSHIP and partially because of an unwritten, unadopted district policy requiring five years of service to the district prior to receiving health insurance in retirement, regardless of what was written in any of the CBAs in the district.
Arbitrator Curreri issued a written decision stating that, while the plain language of the CBA could not override NYSHIP’s vesting requirements, that the district breached the contract when it failed to offer the administrator health insurance through one of the contractually provided HMOs. The decision further went on to state that the unofficial policy of the district did not control, because it was not officially adopted by the board of education and also because of a clause in the contract explicitly stating that the terms and conditions of the CBA supersedes any other policy or regulation of the district. The administrator is now entitled to retiree health insurance and payment for the COBRA premiums made to date.
This victory once again serves to reinforce the importance of specific language about which benefits will be afforded to retirees and under what conditions. It also serves as an important reminder that everyone should make themselves aware of any requirements that may exist in order to receive health insurance in retirement, both under the contract and under the health insurance plan itself, when first joining a district.
Should you find yourself in a situation where you are unsure of whether you are entitled to health insurance benefits in retirement or your benefits are denied or otherwise changed, it is important that you contact the SAANYS legal department as soon as you learn of the issue so we may provide timely advice and support.
Important Update to NYSHIP's Buyout Policy
SAANYS News & Notes February 2014
As those of you who regularly read News & Notes might recall, in 2012, civil service issued a series of policy memoranda limiting, and ultimately abolishing, the right of employers who participate in the New York State Health Insurance Plan (NYSHIP) to offer buyout payments to employees who elect not to receive health insurance due to dual coverage.
One impacted school district was the Brentwood Union Free School District, which provided for such a health insurance buyout to its administrators as a part of the collective bargaining agreement with its administrators. As a result of civil service’s policy memoranda, the district refused to continue the negotiated buyout in fear that the state would discontinue coverage. SAANYS commenced an improper practice charge with PERB on behalf of the administrators, which is currently pending, as well as a court action in Supreme Court, Albany County against the district and the state, challenging the legality of the policy. The court action was dismissed under the four month statute of limitations, under the theory that the statute of limitations began when the memoranda were first issued by civil service and not when the impacted administrators first became aware of the policy. SAANYS has been pursuing the appeal of this decision.
At the same time as SAANYS’ litigation on the legality of the policy, NYSUT also commenced litigation in Supreme Court, Albany County, before a different judge on behalf of the Roslyn Teachers’ Association. On January 10, 2014, Hon. Michael C. Lynch issued a decision and order in favor of the teachers. In his twelve page decision, Judge Lynch states that the lawsuit, which was filed within days of SAANYS’ lawsuit, was timely, as the standard used in determining the start of the statute of limitations is when the state’s determination is first “readily ascertainable to the petitioners.” In this particular situation, the court held that civil service’s policy memoranda was not first readily ascertainable to the association on the May 15, 2012 date it was to take effect, but rather when the district sent a memorandum to the employees on the topic on November 14, 2012. Thus, the case was not deemed to be procedurally defective.
Turning to the merits of the case, the court determined that the policy prohibiting buybacks is invalid as a matter of law. While civil service has the authority to offer health benefits within the plans and implement controls to ensure the sustainability of the plans, the court clarified that a buyback offer between an employer and employee is not a health benefit contained within the plan that the state has the authority to control. Specifically, it was held, “…a participating employer must provide the NYSHIP benefits developed by the state pursuant to Article 11 of the Civil Service Law but a participating employer continues to have the ability to choose, as the state did, to negotiate changes to the buyout benefit with its employees.” Simply put, the state has the ability to dictate “health benefits” like preferred providers, but is not a party to a collective bargaining agreement and has no authority to determine what negotiated incentives are offered for declining employer provided coverage.
Of further interest to SAANYS members is the court’s holding, or lack thereof, surrounding the district’s liability for unilaterally implementing civil service’s policy. According to the court, it could not decide the breach of contract cause of action against the district because the relevant collective bargaining agreement contained a grievance procedure, which the association did not use, and dismissed this cause of action for failure to exhaust administrative remedies. Similarly, the court declined to rule on the causes of action based upon the district’s violation of the Taylor law because there is not a ruling on an improper practice charge before PERB.
SAANYS will be using this ruling as a part of its appeal for the dismissed litigation. What this means for impacted members is that districts cannot refuse to pay negotiated health insurance buyouts based upon the civil service memoranda. If your district uses NYSHIP as a health insurance provider and refuses to pay a buyout based upon the policy, it is important that SAANYS’ legal department is contacted as soon as possible to start the necessary legal processes for challenging the lack of buyout. If your unit is currently in negotiations and the district states that it can no longer offer a buyout due to the policy, this statement is incorrect and we will be happy to provide copies of the decision to anyone upon request. Even without this determination by the court, it is important to understand that policies like the one at hand do not mean that districts are not obligated to negotiate around the change in policy. SAANYS had, and continues to recommend that any agreements surrounding health insurance buyouts under NYSHIP plans include a clause that the buyout would be reinstated in the event that a court deemed the state’s policy invalid. Those districts that negotiated such clauses should see the return of the health insurance buyout, although the district may hold off on reinstating buyouts until it is clear that the state is not appealing this decision.
SAANYS will continue to keep its members apprised of the various aspects of this important matter as they occur. As always, please do not hesitate to call the SAANYS legal department should you have any questions.
Understanding the Basics of the Affordable Care Act
With the recent rollout of programs under the Affordable Care Act (ACA), many SAANYS members may be wondering what changes to expect within their own employer-based health insurance coverage and what new options are now available. While many may not see any glaring changes to their coverage options in the near- term, it is important to understand the major and universal changes to our nation’s health insurance landscape resulting from this legislation.
Individuals currently covered under an employer-based plan may continue coverage under that same plan. Any job-based health insurance plan one currently has qualifies as “minimum essential coverage” for purposes of avoiding future fees. Starting in 2014, individuals without minimum essential coverage will be required to pay a penalty of $95 per adult and $47.50 per child (up to $285 per family) or 1.0 percent of family income, whichever is greater. By 2016, the penalty for an adult will be increased to $695, or 2.5 percent of family income. For those without employment-based coverage, the ACA has created what is called the Health Insurance Marketplace. The Marketplace, accessible online at https://www.healthcare.gov/marketplace/individual, allows individuals to compare health insurance plan offerings from private companies. This offering could certainly be relevant for current members with family in need of insurance or for those without retiree medical insurance looking to bridge the gap to Medicare eligibility. Open enrollment began October 1, 2013 for coverage to take effect as early as January 1, 2014.
For those currently covered under an employer-based plan, it is important to determine if your plan is considered “grandfathered.” Grandfathered plans are exempt from many of the new protections and requirements created under the ACA. This classification applies to plans that existed on March 23, 2010 and have stayed “basically the same.” Currently the federal government has not released any set guidelines as to what qualifies as “basically the same.” The status specifically depends on when the plan was created as opposed to when an individual joined it. So, in theory, one could enroll in a grandfathered plan today as long as the plan itself qualifies under ACA requirements. To find out if your plan is grandfathered, participants should check with their employer or the health plan’s benefits administrator. Additionally, health plans must disclose whether or not they are grandfathered in all materials describing plan benefits.
New protection for individuals with pre-existing conditions is now applicable to all individuals seeking to purchase health insurance, whether through an employer- based plan or the Marketplace. For plan years beginning in 2014, insurers cannot charge more from, or deny coverage to, individuals because of a pre-existing condition. The legislation also makes it illegal for insurers to charge women more than men for coverage under the same insurance plan. Only grandfathered plans are exempt from this new protection.
The ACA also requires health insurance providers and group health plans to provide consumers with (1) a Summary of Benefits and Coverage (SBC), and (2) a Uniform Glossary of terms used in health coverage and medical care. These documents allow consumers to make apples to apples comparisons of their options when deciding on coverage. Individuals are entitled to these documents upon request from the provider when shopping for a policy through the Marketplace or through an employer plan. It should be noted that grandfathered plans are subject to this requirement.
Prior to this new legislation, insurance companies could arbitrarily cancel an individual’s coverage based simply on minor mistakes made by the insured during the application process. Under the ACA, it is now illegal for insurers to cancel coverage based on an applicant’s honest mistake or failure to disclose information where the mistake or missing information has little bearing on the person’s health. This protection applies to all plans, including those classified as grandfathered. However, coverage may still be cancelled where the applicant intentionally provides false or incomplete information, or fails to pay a premium on time.
Another change resulting from the ACA affecting most plans deals with choice of doctors and access to emergency rooms. All insured’s have the right to select any doctor from within their health plan’s network to serve as their primary care physician. Furthermore, insurance companies cannot charge a higher copayment or coinsurance for emergency room care received in an out-of-network hospital. Grandfathered plans are exempt from this restriction.
With only one temporary exception, individuals under the age of 26 can join, remain, or return to a parent’s plan even if married, attending school, financially independent, or eligible to enroll in their own employer’s plan. These coverage rights apply to all health plans, whether job-based or purchased through the Marketplace, that offer dependent coverage. However, until 2014, grandfathered group plans are exempt from this requirement if the young adult in need of coverage is eligible for their own job-based coverage.
The ACA also makes it illegal for insurance companies to set lifetime and yearly limits for coverage of “essential health benefits” on any plan or policy starting January 1, 2014. These essential benefits include (1) ambulatory patient services, (2) emergency services, (3) hospitalization, (4) maternity and newborn care, (5) mental health and substance use disorder services, including behavioral health treatment, (6) prescription drugs, (7) rehabilitative and habilitative services and devices, (8) laboratory services, (9) preventive and wellness services and chronic disease management, and (10) pediatric services. All plan offerings on the Health Insurance Marketplace offer these minimum essential health benefits.
A hallmark of the legislation is its emphasis on providing preventive care. With the exception of grandfathered plans, many health plans, including all Marketplace offerings, are now required to cover certain preventive care services at no cost to the insured if delivered by a network provider. A few of the major services from this list include (1) alcohol misuse screening and counseling, (2) aspirin use to prevent
cardiovascular disease for men and women of certain ages, (2) blood pressure screening for all adults, (3) cholesterol screening for adults of certain ages or at higher risk, (4) colorectal cancer screening for adults over age 50, (5) depression screening for adults, (6) diabetes (Type 2) screening for adults with high blood pressure, (7) diet counseling for adults at higher risk for chronic disease, and (8) immunization vaccines for adults for diseases such as influenza, measles, mumps, meningococcal, and so forth.
Lastly, those covered by private insurance plans now have the right to appeal coverage decisions made by the insurer. The insurer must tell the plan participant why a particular claim has been denied and provide information on how to dispute the decision. This appeals process breaks down into two major steps. An insured who is denied payment for a service or treatment by the insurer can first ask the insurer to reconsider its decision internally. If the insurer upholds its decision to deny payment, the ACA provides the right to an external review of the coverage decision by an independent organization. Rights of the insured may vary depending on their state of residence. Step-by-step directions for filing an appeal are available on https://www.healthcare.gov.
The Affordable Care Act, whatever one’s feeling about it, will undoubtedly impact your health insurance coverage in both the short and long term. While many members will see little or no immediate impact on their health insurance options or coverage, it is important to understand the potential impact of this legislation as the health insurance industry adapts and changes. Again, members should contact their employer or health plan’s benefits administrator to learn more about their specific plan options and feel free to contact the SAANYS Legal Department with further questions.
Seniority and Tenure Rights for Part-time Employees
The lawmakers of New York State have bestowed broad power and discretion upon a board of education with respect to hiring and firing teachers and school administrators. Prior to the enactment of today’s tenure statutes, the board exercised this power using employment contracts between the board and individual employees. These contracts were reviewed and renewed by the board annually, if ever. The tenure statutes were enacted to create a shift in the administrator employment system, from the prior system of annual review to one of permanence and away from the sphere of political influence. The legislation’s main purpose was to provide job security to competent educators and administrators holding positions to which they were appointed.
Generally speaking, tenure is the permanent employment status earned by administrators who complete a probationary period of satisfactory service with a district. All principals, administrators, and other members of the supervisory staff of school districts and board of cooperative educational services (BOCES) must be appointed by the school board to a probationary term of three years. Probationary appointments are required when filling any vacant, unencumbered, full-time position. Unlike the tenure system for teachers, administrators who have received tenure in another school district in the state are not entitled to a shortened two-year probationary period. These credits, available only to teachers, are referred to as “Jarema credits.” However, a board of education may take it upon itself to reduce the term of probation for an administrator and typically do when the individual has been tenured in another position in the district.
Once probation is completed, tenure is granted by the school board upon recommendation from the district superintendent. If the superintendent does not recommend an administrator for tenure, a board of education cannot grant tenure itself. The tenure process requires both the affirmative recommendation of the superintendent and the positive vote of the board. Without both, the administrator will be terminated at the end of his/her probationary term, provided the school district does not acquiesce to his/her continued employment which would result in tenure by estoppel.
An employee who is granted tenure has essentially earned the right to remain employed free from dismissal or discipline unless just cause can be shown. Within the tenure framework, the distinction between “tenure” and a “tenure area” is especially noteworthy. As mentioned previously, tenure is a general designation or status, whereas “tenure areas” are the specific subject areas of administrative positions. The applicable law requires that school districts establish at least one specific administrative tenure area, with the state giving broad discretion to school districts to define them. Conversely, tenure areas for teachers are specifically defined by regulations promulgated by the commissioner of education. Furthermore, an administrator’s tenure area may be broad, such as “district administrator” or narrow, such as “elementary principal.” Some districts go even further, creating administrative tenure areas specific to the building in which the person works.
Another area in which the tenure system for teachers and administrators differs is the ability of the employee to attain tenure in two separate areas simultaneously. Teachers may attain tenure in more than one tenure area at a time if spending at least 40 percent of their time on each of the two areas. For administrators, a different set of rules apply. An administrator must devote more than 50 percent of his/her time to duties in the administrative tenure area to which he/she is appointed.
However, an administrator can be deemed to serve simultaneously in both administrative and teacher tenure area, and thus receive seniority credit and tenure in both areas. This law was established as a result of Appeal of Pearce, a 2010 case SAANYS successfully argued before the commissioner of education. In Pearce, an administrator had been appointed to a probationary position in which she spent 60 percent of her time as dean of students and the remaining 40 percent as a foreign language teacher. The decision concluded that this administrator was able to obtain tenure and seniority in both the administrative and teaching tenure areas because she performed more than 50 percent of her duties in the administrative tenure area and at least 40 percent within the teacher tenure area. Given this system, an administrator cannot attain tenure in two administrative tenure areas simultaneously, nor do they retain prior administrative tenure after they accept a new administrative position in a different tenure area.
Very often, confusion arises amongst administrators about the particular tenure area to which they belong. Critical attention must be paid to the evidence surrounding their appointment, not granting of tenure. Evidence must be gathered including his/her appointment letters. In addition, one must look at other documents such as the board meeting minutes, the board agenda and board resolutions relating to the person’s initial appointment. This evidence will be used to determine the tenure area to which the administrator was first appointed. In such cases, any ambiguity or discrepancy is construed against the hiring school district. This determination is of particular importance as it directly impacts seniority rights.
Seniority rights are those rights to job security and priority within a school district based on length of actual paid service in a particular tenure area. Specifically, the first and main factor in calculating seniority is an administrator’s full-time service within a tenure area. Unlike tenure rights, seniority rights apply to both tenured and probationary administrators. In the event a position is eliminated, seniority is the sole factor used to determine the order in which an administrator would be excessed. Because of the “more than 50 percent rule,” it is impossible to hold administrative tenure in two or more areas.
Once a position is abolished, the laid off certificated administrator previously filling that position must be placed on a preferred eligibility list (PEL) of candidates for current or future job vacancies. Those on this list remain candidates for appointment to a similar position for a period of seven years after their previous position was abolished. The preferred eligibility list applies to both the position abolished and any similar position that may become available. A key distinction for those on the list is that seniority is determined by years of service within a district as opposed to a specific tenure area. However, if someone retires in lieu of being laid off, they forfeit their PEL rights.
A special set of complications arise for those working as a part-time administrator within a school district. Generally, part-time administrators are unable to receive probationary appointments and credit towards tenure status. Exceptions may be made for administrators only if a board decides to extend credit for tenure to a part-time employee through a board resolution or through a provision in a collective bargaining agreement. Those administrators who have already gained tenure status through service in a full-time position will not lose that status by taking a part-time position.
Part-time administrators are also ineligible for seniority credit. However, any part- time service performed after the completion of a full-time probationary appointment is included in the seniority calculation as long as the district requested the change. This is not the case where the administrator requests the reduction to part-time status him or herself. As was the case for tenure and part-time administrators, seniority credit may only be extended for part-time administrative work through a board policy or collective bargaining agreement.
An important limitation exists in that a collective bargaining agreement or policy purporting to extend seniority credit for part-time service cannot negatively impact bargaining unit members. To illustrate this situation, suppose an administrator works for ten years in a part-time role without any agreement or policy in place to extend seniority credit for these years. If the district attempts to layoff the part-time employee along with two full-time employees, each with less than ten years of service in the district, the board may not now reach an agreement retroactively extending seniority credit to the part-time employee as this action would negatively affect the two full-time employees. The board may still negotiate and extend seniority credit for future part-time service performed, but in this example, the two full-time employees must be recalled before the part-time employee with more years of service.
In summary, it becomes clear how fact-specific and complicated tenure and seniority rights can be. Anyone with questions regarding these topics should call the SAANYS Legal Department for assistance.
Transfers Within Tenure Area That Require Change in Duty
An ongoing issue amongst teachers and administrators in public education has been their movement, or transfer, from one position to another. We have already discussed that you cannot be transferred outside your tenure area without your expressed written consent. A separate question is whether you can be transferred within your tenure area but made to perform different duties without your express written consent. The short answer is you can.
There are two different scenarios in which this can occur that we at SAANYS have most experienced. The first is when a precipitating incident has required that an employee be removed to another location for disciplinary reasons. The second is partially a result of the increased financial struggles of the last half decade. A by-product of district’s seeking to reduce administrative staff has been transfer of individuals who cannot be otherwise terminated. Exigent circumstances like closing of a building, emergency budget cuts, and the like have made the work previously performed by the employee no longer necessary, but may include that other work needs to be done. The question then becomes what duties can, in a SAANYS member’s case, an administrator be made to perform.
Over the last 25 years, the law has been that such a transfer of assignment within your tenure area must bear a reasonable relationship to your competence and training and be consistent with the dignity of your profession. In challenges to such reassignments, the courts have held that the reasonable relationship and dignity of the profession concepts are very broad. The assignment can be outside your job description as long as it’s in an educational facility with a relationship to the district. If the work can be contemplated to be performed by someone in your tenure area, then it is valid assignment. For example, a principal cannot be made to clean restrooms. Not strictly for the dignity question, but that there exists a categorization, albeit Civil Service, that would normally perform this work. Therefore it would be out of your tenure area. However, a principal can be made to perform certain data entry work, chair certain meetings, and the like. The courts are loath to make a decision overturning such transfers when they do not involve damages or the loss of a property right such as job title, salary, or benefits. And as always, the commissioner of education has jurisdiction over questions that arise whether the job duties were within your tenure area. The ratio of related duties is considered and the rule is 51 percent or better constitutes “within your tenure area.”
When faced with such a situation, there are several steps to consider. The first is the name of the tenure area an administrator occupies. The name may indicate some intent of the district which may be important when defining the appropriateness of the reassignment. Similarly, the second item of review is whether the district has developed a scheme in regard to administrator tenure areas. Since the commissioner does not define tenure areas for administrators as he does for teachers, this would also help determine whether seniority issues are involved, and then whether the transfer was within or without the tenure area. In one challenge to such a transfer, a member in the “building administrator” tenure area was made to perform certain data entry work – but was made to do so in the central office kitchen and copier area where the member was subject to repeated interruptions, including individuals eating lunch while he worked. While the duties were arguably within the dignity of the profession, SAANYS asserted a challenge using the commissioner’s regulatory definition of a “building” and related it to his tenure area of “building administrator.” The district subsequently restored the member to an office in the school building.
The administrative tenure areas raise complicated questions. It is important to maintain your employment records, including board minutes of every job appointment you have and job descriptions. This will assist you in making the discussion with the SAANYS counsel’s office more fruitful.
School Computer and Phone Use
This article might better be titled as ‘How Good People Get in Trouble,’ a topic that sometimes we think has endless examples. Do you remember signing a district equipment fair use agreement? Most districts employ some form of a fair use agreement as notice to all employees that district equipment may only be used for district purposes. Often this is one of the forms newly hired staff is asked to sign with other official papers during the first weeks of employment. Understandably, its existence and effect may fade into distant memory; the district, however, remembers when it wants to, usually at the expense of an employee’s job security.
The purpose of all such agreements is to ensure that public funds are spent exclusively as taxpayers expect, which is entirely on school business. For that reason, these agreements usually fail to provide for any exceptions. Unfortunately, such rigid restrictions conflict with our knowledge of what many employees are permitted in the private sector, and the distinction may result in discipline.
The two pieces of school equipment administrators sometimes fail to realize they may not use for any personal reasons are school computers and school phones. In fact, it is natural for most of us to believe that the intended restrictions are for what might be known as material misuse, such as for pornography or illegal activities. The reason we recognize those uses as wrong is probably because we implicitly believe those activities are wrong regardless of what equipment might be used to facilitate the activity. So, for example, we instinctively recognize using a school computer or phone to access child pornography or to buy illegal drugs is wrong, just as it would be wrong (and illegal) to do the activity regardless of whether or not we used the computer or phone to facilitate the activity.
But the agreements mean much more, and failure to recognize their full effect may result in discipline for otherwise legal or innocent activity. If your agreement provides that NO personal use is permitted, you MAY be held accountable for ANY personal use.
The issue usually arises in one of two ways. Either the district, usually in the body of a new superintendent, decides to issue the administrator a counseling letter for personal use of district equipment, or the district has decided to vote 3020-a charges. Then, our experience is that in either case, but particularly in the case of 3020-a charges, the district will add to the primary instance or issue as many other instances of alleged bad behavior as possible in order to strengthen its case. For 3020- charges, the additional instances serve to support the justification for greater discipline, even for termination.
Regardless of the district’s motivation, prohibited personal use of the equipment is a violation regardless of how reasonable the use is or whether it failed to incur the district any additional cost. For example, unless provided as an exception, personal emails to your spouse or child, or checking the weather before you start driving home in a snowstorm, is prohibited if all personal use is prohibited.
Silly? Unreasonable? Perhaps. But if all personal use is prohibited, such use is grounds for discipline. And remember, anything you do by computer can almost always be discovered by the computer gods … even years later. Deleting email messages does NOT preclude the message from being accessed by a technology expert years after the fact.
So how do you protect yourself? First (and always), never use district equipment for anything you wouldn’t want the superintendent or your best friend or spouse to know. Second, for innocuous or harmless activity of limited time and frequency, get a general permission exception by email from the superintendent. Send a request along the lines of: “Say Super … I remember signing a fair use agreement governing our use of school computers … but isn’t it OK to email my spouse a few short emails during most days as long as it doesn’t interfere with my work?” Then – and this is crucial – print out and save in your home based hard copy folder your inquiry and the response. And remember that because no expectation of privacy exists for anything you do at work, all your emails and phone conversations may someday be made public or used against you in discipline. So after the superintendent gives you written approval for such exceptions and you write that email to your significant other, make sure the contents would not embarrass you if they someday are made public.
Administrators always seek to better understand the practice of appropriate searches of students. This article will address the relationship of the school resource officer or school safety officer (SRO) and district personnel when a search of students is conducted. The federal and New York State constitutions are generally in accord that, while for private citizens the probable cause standard applies for searches, in school districts the standard is modified to reasonable suspicion. The reason for this has always been the unique requirements of public education and public policy. That’s fine when only school officials are involved in a search. But the open question arises when a criminal issue like drug search occurs and the SRO who is employed by the municipality and not the district becomes involved with school personnel.
You may recall that the reasonable suspicion standard is met by two elements: first, the search must be valid at its inception, meaning that the grounds to suspect a school rule or law was violated were unequivocal, reliable, and precise. And, second, that the scope of the search was reasonably related to the circumstances requiring it so that the search was not excessively intrusive.
There are several unique legal issues that arise that have no clear guidelines to govern validity of searches when the police are involved with school personnel when searching a student. New York courts seem to be in accord with federal courts in applying the reasonable suspicion standard when the SRO is involved if the school officials made the initial decision to conduct the search, the SRO merely assisted in the search at the direction of school officials, and the police did not use the search as a pretext to circumvent the probable cause requirements. And separately, one New York court applied the reasonable suspicion test when the SRO was explicitly assigned to the school district solely as school security and he alone conducted the search. But outside of New York, certain courts require the probable cause standard if the police authorize the search or act more than minimally in the search.
So it is clear that a building administrator, when asked to conduct a search, must make sure that it is at the direction of his superior in the school district and not at the direction of the SRO or police agency. Even if the administrator believes the SRO is exclusively assigned to his building or district, he or she should never act solely at the direction of the SRO because, for example, the administrator can never be certain if the search is a pretext to circumvent probable cause.
Moreover, strip searches are almost never justified. The general rule is that the school officials must have reasonable suspicion of danger or that evidence or contraband is hidden beneath underwear. However, federal courts have held that a “high level of suspicion” is required for this kind of search. This means that an administrator should almost never strip search a student down to or below underwear unless they believe they have the direction of a superior in the school district and that they can corroborate that the superior has highly credible information that the search would prevent danger or yield evidence. An administrator must make that decision when directed by a superior even when under threat of insubordination. Remember, along with these general guidelines communication is the key.