Federal Contractors Must List Job Openings: OFCCP Issues Final Rule

Posted by Teresa A. CheekOn April 21, 2008In: Diversity

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The Office of Federal Contract Compliance Programs (OFCCP) issued a final rule on mandatory job listing by federal contracts. The rule is equired by the Vietnam Era Veterans' Readjustment Assistance Act,* (“VEVRAA”) and the Jobs for Veterans Act of 2002 (“JVA”). Federal contractors are required to list almost all job openings with “the state workforce agency job bank where the opening occurs or with the local employment service delivery system where the opening occurs.” The exceptions to this rule include openings for executive and top management positions, positions that are to be filled internally, and positions that will last three days or less.

You can read the new rule and the OFCCP’s discussion of the rationale for the rule, titled, "Nondiscrimination and Affirmative Action Obligations of Contractors and Subcontractors Regarding Protected Veterans" in the Federal Register.


*38 U.S.C. 4212

Race Discrimination Class Action Denied by Third Circuit Court of Appeals

Posted by Maribeth L. MinellaOn April 20, 2008In: Cases of Note, Disabilities (ADA), Purely Legal, Race (Title VII)

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The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination--8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court's scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory--within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson's relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.

Glass Ceilings Aren't Broken With Anger: Study Shows Angry Women Lose Respect at Work

Posted by Molly DiBiancaOn April 20, 2008In: Jerks at Work, Women In (and Out of) the Workplace

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Women don't win by playing the anger card, according to a new study from Yale University psychologist Victoria Brescoll.

Brescoll and Eric Uhlmann at Northwestern University recently completed three separate studies to explore a phenomenon that is all-too-familiar to many women in leadership positions: Anger is not a pretty thing. The studies conclude that men who get angry are accepted and even rewarded but women who lose their temper are perceived to be less competent.

The studies, published in the March issue of Psychological Science, provide women with recommendations for navigating emotional hazards of the workplace. Brescoll says it pays to stay emotionally neutral and, if you can't, at least explain what ticked you off in the first place.

One method employed by the studies was to show both men and women scenes of men and women (actually actors) who were ostensibly applying for a job. The study participants were then asked to rate the applicants on (1) how much responsibility they should be given; (2) their perceived competence; (3) whether they should be hired; and (4) how much they should get paid.

Male and female participants reached the same conclusions:

Angry men deserved more status, a higher salary, and were expected to be better at the job than angry women.

The study participants provided the same responses regardless of the type of job for which the candidate was applying. Executive- and entry-level candidates were ranked equally.

Emotions, however, had a much greater impact. When the actor-applicants expressed anger, the men were selected as the preferred candidates. And when the actors expressed sadness, the bias seemed to lessen, and women applicants were ranked equally to men in status and competence. Emotions did not have any impact on the participant's opinions about salary--in both scenarios, the viewers awarded male applicants a higher salary.

A final study showed another way bias against female anger could be mitigated. When women actors explained why they were angry, observers tended to cut them more slack. Men, on the other hand, could actually be hurt when they explained why they were angry - perhaps, says the Yale psychologist, because observers tend to see this as a sign of weakness.

The study seems to lend some credence to the saying, "Kill 'em with kindness."

The Wrong Way to Break Through the Glass Ceiling: Study Says Women Can't Afford to Be Angry

Posted by Molly DiBiancaOn April 20, 2008In: Jerks at Work, Women In (and Out of) the Workplace

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Women

Yale psychologist Victoria Brescoll and Eric Uhlmann at Northwestern University recently completed three separate studies to explore a phenomenon that is all-too-familiar to many women in leadership positions: Anger is not a pretty thing. The studies conclude that men who get angry are accepted and even rewarded but women who lose their temper are perceived to be less competent.

The studies, published in the March issue of Psychological Science, provide women with recommendations for navigating emotional hazards of the workplace. Brescoll says it pays to stay emotionally neutral and, if you can't, at least explain what ticked you off in the first place.

One method employed by the studies was to show both men and women scenes of men and women (actually actors) who were ostensibly applying for a job. The study participants were then asked to rate the applicants on (1) how much responsibility they should be given; (2) their perceived competence; (3) whether they should be hired; and (4) how much they should get paid.

Male and female participants reached the same conclusions:

Angry men deserved more status, a higher salary, and were expected to be better at the job than angry women.

The study participants provided the same responses regardless of the type of job for which the candidate was applying. Executive- and entry-level candidates were ranked equally.

Emotions, however, had a much greater impact. When the actor-applicants expressed anger, the men were selected as the preferred candidates. And when the actors expressed sadness, the bias seemed to lessen, and women applicants were ranked equally to men in status and competence. Emotions did not have any impact on the participant's opinions about salary--in both scenarios, the viewers awarded male applicants a higher salary.

A final study showed another way bias against female anger could be mitigated. When women actors explained why they were angry, observers tended to cut them more slack. Men, on the other hand, could actually be hurt when they explained why they were angry - perhaps, says the Yale psychologist, because observers tend to see this as a sign of weakness.

The study seems to lend some credence to the saying, "Kill 'em with kindness."

Workplace Privacy: Biometrics May Be Coming to a Workplace Near You

Posted by Molly DiBiancaOn April 20, 2008In: Electronic Monitoring, Privacy In the Workplace, Privacy Rights of Employees

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Employee-privacy advocates are not in favor of biometrics in the workplace. But many employers do not share the concern. Biometrics are being used in workplaces across the country for purposes ranging from security to timekeeping and attendance.

handpunch150x94.jpg

What are Biometrics?

You may not know it, but you have probably seen biometrics in use numerous times. Catch any modern spy movie and there is sure to be a scene where the main character accesses the inevitable Restricted Area using the fingerprint of a dead man via a "borrowed" digit. Or maybe the triple-secret bank vault can be opened only via a a retina scan of the bank's Very Important President. You get the idea.

Biometrics run the gamut from simple to NASA-level technology. Biometrics on the most basic level could include simple ID badges with the employee's mug-shot style photograph. Signatures are even included in biometrics that are used as a security measure. Today, employers utilize password-management systems that require employees to regularly change their personal passwords in order to access the company's network.

The term "biometrics" refers to a method of authenticating the identity of an individual using enduring physical or behavioural characteristics. Any system that utilizes biometrics relies on the use of biometric identifiers. Also known as "BIs," biometric identifiers are select pieces of information that relay an encrypted picture of some unique feature of the person's biological makeup. Common BIs include fingerprints, retinal scans and voice scans.

Other identifiers that have been suggested and used include: hands, feet, faces, ears, teeth, veins, voices, signatures, typing styles (keystroke), gaits and odors.

How Effective Are Biometrics?

In the employment context, biometrics are used as an authentication tool. The BI is compared to the authenticated BI, which is stored in a database. Used this way, biometrics offer a nearly infallible security system. Unlike traditional security measures, like passwords or security badges, biometrics cannot be shared, lost, forgotten, stolen, or recreated.

But there are security risks for the user. For example, the authenticating, or original, data must be kept as secure as possible, which usually means not being sent wirelessly. And, if it is sent across a network, encryption should be at a maximum. As a compromise, systems often provide for a larger margin of error. And, unlike passwords and security questions, biometrics cannot be changed or revoked when the employment relationship ends.

What Else Could Go Wrong?

Well, lots, actually. Unauthorized access to highly sensitive personal information raises very legitimate concerns about identity theft--a problem that already has employers on high alert for potential liability. And, without any regulatory system in place, what about the potential privacy implications? Surely, employees will want to know what other information can be obtained should the wrong person have access to the database.

Delaware Employment Law Blog featured on Inter Alia as the Blawg of the Day!

Posted by Molly DiBiancaOn April 18, 2008In: Newsworthy, YCST

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Inter Alia, (a/k/a) the Best Legal Research Blog, features Delaware Employment Law Blog as the Blawg of the Day


Inter Alia is the favorite weblog for legal research and reference (if you didn’t already know). Each day, Tom Mighell, blogger extraordinaire, posts about a legal research “blawg” (law + blog). Today, the Blawg of the Day is the Delaware Employment Law Blog!! Many gracious thanks to Tom for the recognition.

As a side note, for those of you who may still be new to the world of blogging, Inter Alia is the ultimate resource to find blogs of interest as you develop your list of feeds.

But, wait! There’s more! Tom also publishes Internet Legal Research Weekly, an e-newsletter readers can subscribe to for free, that covers anything and everything legal research, and then some. It often contains great information about other resources, such as Web 2.0 and other online tools. The current issue of the ILRW is available online or via subscription, and, when you have something specific in mind, check out the Internet Legal Research Weekly archives.

Really, there's more! Tom and his co-author, Dennis Kennedy, recently published the hottest book in the world of Legal Technology and Law Firm Practice Management, The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together. Published by the ABA, the book is written in plain-English suitable for both the tech savvy and the not-so-tech savvy and provides detailed information on how to effectively collaborate using the multitude of online tools availble in today's internet-driven world.

The book is the talk of the blogosphere at: Between Lawyers, at David Maister's Passion, People, & Principles Blog, and the Illinois Trial Practice Weblog, just to name a few.

And Dennis Kennedy has a comprehensive post on his blog with lots of information about the book.

Equal Pay Becomes Front Runner as Lilly Ledbetter Act Takes Center Stage

Posted by Teresa A. CheekOn April 18, 2008In: Equal Pay, Women In (and Out of) the Workplace

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The National Women’s Law Center is promoting Equal Pay Week with Blog for Fair Pay Day today.

Equal Pay Week marks the point in 2008 when the average woman’s wages catch up with what the average man earned in 2007. Women’s earnings are still on average only 77% of men’s. The site has a compilation of blog postings (and a “vlog” posting) about the equal pay issue, and a link for readers to use to urge their senators to vote in favor of the Lilly Ledbetter Fair Pay Act. That’s the law designed to reverse the Supreme Court’s ruling that imposed a very short statute of limitations on equal pay claims. The vote may be as soon as next Wednesday, April 23.

Senator Ted Kennedy issued a press statement yesterday voicing his opinion in favor of the Act.

Equal pay is a tricky issue, but one in which the EEOC and OFCCP have both taken an interest of late. The OFCCP advises federal contractors to conduct self-audits of their pay practices. I can attest that a self-audit is a difficult task because so many factors can influence pay and most employers do not track information about training, education, starting pay, etc., in their HR information system.

Whether you are for or against the Ledbetter Act, now is the time to make your opinion known.

Increase In Teen Harassment Claims May Result In Higher Burden for Employers to Avoid Liability

Posted by Scott A. HoltOn April 18, 2008In: Harassment, Other (Title VII), Harassment, Sexual

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In this month's edition of the American Bar Association's pulication, the ABA Journal, is an article titled "New Troubles for Teens at Work." The article reviews recent cases that seem to indicate the courts' narrowing definition of what constitutes acceptable workplace behavior.

Restaurants, which tend to be a much more casual workplace enviornment, have been the source of a large percentage of teen harassment claims. In a recent decision by the federal appellate court for the Seventh Circuit, EEOC v. V&J Foods, employers were warned that they will not be excused from liability by the mere fact that they have a policy and reporting mechanism in place. Instead, the court warned the business community that, when it comes to teen harassment, the bar has been raised.

Delaware Governor Ruth Ann Miller Credits Wilmington Attorney William W. Bowser as a Champion in the Fight Against Cancer

Posted by Molly DiBiancaOn April 18, 2008In: Delaware Specific, Newsworthy, YCST

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Delaware's Governor Minner received the Wallace M. Johnson award from the New Castle County Chamber of Commerce in March 2008. The award recognized the Governor's work to reduce cancer incidence and mortality and increase prevention and screening efforts in the First State. On the Governor's blog, she reciprocated the praise by spotlighting some of the groups and individuals who helped change the State's approach to cancer treatment and prevention.

Among those mentioned is our own Bill Bowser, a partner in the Employment Law Department at Young Conaway. Bill is the Chair of the Delaware Cancer Consortium, the group that Governor Minner credits as one of the central reasons for the State's successful initatives.

The Governor writes:

In 2001, we approached a vested group of legislators, business leaders, medical professionals, and concerned Delawareans to form the Delaware Cancer Consortium, which was charged with making recommendations to help reduce our cancer rate. Their recommendations included the Clean Indoor Air Act, the Delaware Cancer Treatment Program, Screening for Life, the Nurse Navigator program, and the Delaware QuitLine, among many others. Because of their help and the leadership of chairman Bill Bowser, we have been able to help families and save lives.

Also worth noting for employers, the Consortium has implemented a workforce/workplace initiative. The Workforce/Workplace Committe is committed to its mission to:

Improve clinical and support services in the workplace to better manage symptoms and rehabilitation and accommodate disabilities associated with the disease. As a result, employers can increase the numbers of cancer survivors who successfully return to work. The dynamics in the workplace—just as in the routine of living—change dramatically for a cancer survivor. Inability to work regular hours can affect finances and health insurance. Social connections may be lost. Professional selfr-espect, self-esteem and satisfaction can suffer. For the employer, productivity may be affected. If there are physical limitations, the employer may alter job assignments, which can enhance employer-employee relations.

Bill's many years of hard work and dedication to the First State's fight against cancer is appreciated by many and the effects of his work have been felt by countless Delaware citizens.

Following Wednesday’s Democratic Debate in Philadelphia, Employment Law Poll Identifies Priorities for the Next U.S. President

Posted by Sheldon N. SandlerOn April 18, 2008In: Delaware Specific, Newsworthy

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AMERICANS WANT NEXT PRESIDENT TO FOCUS MORE ON SAVING U.S. JOBS AND HEALTHCARE; LESS ON IMMIGRATION REFORM

With the spotlight of the political world shining on the Delaware Valley today, a new “America at Work” national opinion survey by the non-partisan Employment Law Alliance (ELA) shows that Americans overwhelmingly want their next President to focus more on improving their standard of living, providing universal healthcare, and stemming the outsourcing of jobs overseas than making it easier for immigrants to live and work in the United States.

The poll is based on a sampling of 1,125 working Americans surveyed between April 4 and 9 and is believed to be the only national survey to date focusing exclusively on a wide range of workplace-related issues that will likely confront the next President.*

You can not walk outside today and not hear people talking about Wednesday's debate and the impact of the upcoming elections on jobs and healthcare. Life in the workplace is often the centerpiece of concern for so many Americans getting ready to elect a new president.

While issues such as immigration get much of the press, I believe that the poll shows that what a typical voter is interested in might vary.

A summary of the results reveal:

· 87% of Americans want their next President to focus on increasing the proportion of the workforce earning at least a living wage, closely followed (86%) by making it tougher for companies to outsource U.S. jobs to foreign countries, and (83%) rounding out the Big Three, providing healthcare coverage for all U.S. citizens.

· 76% of Americans are also concerned - but not at the same intensity level - with having the next President work toward increasing workplace safety regulation, 70% support focusing on expanding family leave rules and 69% think beefing up enforcement of workplace discrimination laws should be a priority.

· In sharp contrast, 40% said they are concerned that their next President focuses on immigration issues, ranging from making it easier for professionals to work in the U.S. to granting amnesty for illegal aliens.

· Workers were also significantly split along racial lines regarding both views on workplace issues and immigration reform with, for example, 55% of non-whites supporting relaxing immigration laws for professionals versus 36% among whites.

· Geographically, 46% of workers in Western states thought the President should make increasing legal immigration a priority compared to a low of 25% among Midwestern workers.

· 45% of Americans want to make it easier for unions to organize workers.

ELA members concentrate on labor and employment law issues in every American state and more than 75 countries. The survey was conducted prior to Wednesday's democratic debate at the National Constitution Center in Philadelphia and the Pennsylvania primary on April 22nd.

“The message to the next President is raising the standard of living and getting better healthcare is more of a priority than organizing unions or immigration concerns,” said Sandler.

Dr. Ted Reed, President of Philadelphia-based Reed group and Poll Director for ELA, said the input from ELA's attorneys around the country was invaluable in shaping the questions for the survey. According to Dr. Reed, “This survey is important because of the extent of demographic detail, including gender, race, income, education, and geography. The focus on pocketbook issues across the board as a Presidential priority is unmistakable.”

*The error interval is +/- 2.99% at a 95% level of confidence.

********************************************************************
Sheldon N. Sandler, a partner in the Employment Law Department at Young Conaway Stargatt & Taylor in Wilmington, Delaware, members of ELA.

Young Conaway Stargatt & Taylor, LLP, one of Delaware's largest law firms, counsels and represents national, international and local clients, handling sophisticated advisory and litigation matters involving bankruptcy, corporate law and intellectual property. Now in its fifth decade, Young Conaway also guides regional businesses and individuals through a myriad of employment, real estate, tax, estate planning, environmental, and banking issues from the firm's offices in downtown Wilmington.

The Employment Law Alliance is the world's largest integrated, global practice network comprised of premier, independent law firms distinguished for their practice in employment and labor law. Comprised of more than 3,000 lawyers, there are member firms in every jurisdiction in the United States and over 75 countries around the world. For further information, including access to the survey charts and graphs, visit: www.employmentlawalliance.com

Family Responsibility Discrimination. Download of a Short and Sweet Summary of the FRD Now Available (yes, for free!)

Posted by Adria B. MartinelliOn April 17, 2008In: Family Responsibilities (FRD), Seminars, Past

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ADEA, ADA, FMLA, now FRD??? Is FRD (Family Responsibility Discrimination) the latest acronym to add to the growing list of potential employee claims to be concerned about?

At our Annual Employment Law Seminar yesterday, I presented on this subject, which has been a recent “hot topic” in the world of Employment Law. I also prepared a handout for attendees. It's a concise, easy-to-read summary of the "who, what, where, why, and how" of Family Responsibility Discrimination. You can now get a copy of the handout--use the link below to jump to a pdf copy of the materials. The articles might just turn out to be a handy reference when you have a potential FRD issue.

And if two pages (with pictures!) still seems to long for you, here's the conclusion I draw at the end; i.e., The Bottom Line about FRD:

The line where bias turns into an actionable family responsibility claim is not always an easy one to see. But given the EEOC’s focus on this type of discrimination, it is essential you recognize the issues. Review the EEOC’s enforcement guidance carefully and seek advice of counsel if you have any questions about taking employment actions with respect to an employee with caregiving responsibilities.

Just contact me if you need additional guidance on the rights and responsibilities of employers with respect to FRD.


Family Responsibility Discrimination Handout

Author of “Ending the Gauntlet,” Lauren Stiller Rikleen, to Speak on the Retention of Attorneys by Firms

Posted by Teresa A. CheekOn April 17, 2008In: Women In (and Out of) the Workplace

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Our readers with HR responsibilities and interests at law firms may be interested in signing up for an hour-long, CLE-accredited webinar on best practices for retaining your firm’s attorneys. One of the presenters is our friend Lauren Stiller Rikleen, author of Ending the Gauntlet: Removing Barriers to Women’s Success in the Law. I've heard Lauren speak on several occassions and can attest that she is a fantastic speaker. You can read an article by Lauren titled, Women's Initiatives: Seeking Opportunities and my review of her book, as well as other articles about women in law in the Delaware Lawyer magazine. (All editions of the Delaware Lawyer magazine have been archived on its website.)

Be sure to let us know what you think if you decide to participate.

U.S. Immigration & Customs Enforcement Raids Workplaces, Making Numerous Arrests

Posted by Teresa A. CheekOn April 17, 2008In: Immigration, Newsworthy

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U.S. ICE raids Poultry Plants, Doughnut Factory, Mexican Restaurants and Arrests Managers and Hundreds of Workers

I’ve previously posted about the issue of undocumented workers and talked about it a bit at our Annual Employment Law Seminar yesterday, so the AP story in today’s Wilmington News Journal is especially timely. The article
describes the latest raids by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security on workplaces with large numbers of illegal alien employees. The raids included arrests of an owner and 10 managers of one company.

As I said yesterday, one reason that business owners and managers should be paying close attention to this issue is to stay out of jail!

ICE arrested 300 workers for identity theft, document fraud and immigration violations at Pilgrim’s Pride chicken processing plants in five states. The company itself reported identity theft issues to ICE and cooperated in the enforcement action. It uses the E-Verify online database to check the documentation of new employees, and fires employees who do not correct documentation problems. But, as a company spokesperson pointed out, that doesn’t help with cases of outright identity theft. This is at least the fourth round of raids and arrests on poultry plants since 2005.

No charges were filed against the company itself. On the other hand, yesterday’s arrests included the owner and 10 managers of a chain of Mexican restaurants located in four states (New York, Pennsylvania, Ohio and West Virginia), who were charged with employing illegal immigrants. Forty-five restaurant workers were also arrested on immigration charges.

30 people were arrested in a raid of a Houston doughnut factory. Many of the individuals who were arrested were housed in a company dormitory. No word yet on whether owners or managers of the factory will face criminal prosecution.

The article concluded with a report that a grand jury in Atlanta had indicted 10 people from employment agencies there for placing illegal aliens at locations in six states. The agencies were charged with developing a network to “recruit and exploit” illegal workers.

My previous posts on this topic include, "The Safe-Harbor Rule for No-Match Letters," Parts 1, 2, and 3, as well as "Get the Jump on No-Match Letters and Suspicious Documents." Those articles provide you with comprehensive explanations of what No-Match Letters are and how they can impact your business.

The moral of this story is that employers must be proactive in protecting themselves from this type of situation.

If you know or suspect that your workers are using false documents, don’t just sit on your hands and hope for the best. You should sign up for and start using E-Verify for new hires, and use the Social Security Number Verification System (SSNVS) provided by the Social Security Administration to find out the extent to which your current workers’ social security numbers and names do not match Social Security Administration records. Develop a policy for dealing with this issue, including terminating all employees (whether they "appear" to be illegal immigrants or not) who fail to straighten out no-match issues within a reasonable time.

Employers must tread carefully when creating a policy to avoid discrimination issues. Contact me if you’d like some help.

Delaware Appoquinimink School District Prevails In Related-Services Dispute Under IDEA

Posted by Michael P. StaffordOn April 17, 2008In: Newsworthy, Public Sector

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On appeal from a due process hearing decision, the federal District Court in Wilmington, Delaware ruled in favor of the Appoquinimink School District.

The court was asked to review the decision of a due-process hearing panel involving a parentally placed private-school student. The Panel had previously found that the District was obligated to pay for the student's American Sign Language (ASL) interpreter at a local private school, despite his status as a parentally placed private-school student.

The parents of the student initially alleged in their due process complaint that the student had been denied a free appropriate public education (FAPE), while enrolled at the Sterck School (Delaware School for the Deaf). They also claimed that there was no appropriate public placement available because their son required a small class size in order to access his education through an interpreter.

As a remedy, they sought a private placement at public expense, the provision of an ASL interpreter as a related service, and compensatory education.

The Panel rejected the parent's claims of Fair Appropriate Public Education (FAPE) and least-restrictive-enviornment (LRE). The court held that the student could receive a FAPE in one of several available public placements. However, the Panel determined that the School District's refusal to fund the interpreter as a related service was "an abuse of discretion," because the IDEA and Delaware state law did not expressly prohibit the District from funding the interpreter.

According to the Panel, "[i]n the rational exercise of discretion, [the District] should provide a sign-language interpreter as a related service, and liability continues over the parents' unilateral placement." (The full Panel decision can be found on the Delaware Department of Education's website, linked here: Appoquinimink Sch. Dist., DE DP 06-11).

The District Court gets it right

The School District and the Delaware Department of Education appealed the decision to the federal court, located in Wilmington, Delaware. The Honorable Joseph J. Farnan, Jr. decided the case on appeal. They argued that they were under no obligation to fund the student's interpreter because of the separate, more limited, set of entitlements given to parentally placed private-school students by the Individuals with Disabilities Education Act (IDEA).

Specifically, the IDEA obligates districts to spend a proportional share of their federal Part B funds on the provision of related services to parentally-placed students who attend private schools located with their boundaries. The nature of the related services provided is determined through meaningful consultations with representatives of the private schools, the point of which is to identify the greatest area of need.

The court agreed, concluding that the Panel committed an error of law by ordering the School District to fund the interpreter. "Where, as here, the District has provided the child with a FAPE and the parents elect to place the child in private school, no liability continues on the part of the District for the payment of that child's cost of education, including special education and related services," because parentally placed private-school students have no "individual right to receive to receive some or all of the special education and related services that the child would receive if enrolled in a public school." Judge Farnan's full decision can be found on the District Court's website.

The Court also noted that the costs of the student's interpreter were more than ten times greater then the entire amount of the District's proportional share of Part B funds.

Finally, the Court held that that the Panel exceeded its authority in holding the District responsible for the interpreter once it had determined that the student was parentally placed in the private school, because the IDEA expressly states that complaints concerning the provision of services to parentally placed private-school students are not subject to due process procedures.

This was a notable victory for Appoquinimink School District and will be important precedent for future Delaware cases involving special education and school law.

[Editor's Note: Mike Stafford, the author of this post, is too modest to to note that he and Scott Holt, a partner in the YCS&T Employment Law Department, represented the School District in this case and were instrumental in seeing the case to victory. Well done, Mike and Scott!!]

Do You Wear a Flag Pin?: Keep Political Speech Out of the Office

Posted by Maribeth L. MinellaOn April 17, 2008In: Employee Handbooks, Public Sector

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flag-pin.bmp

At the democratic debate held last night at Philadelphia's own Constitution Center, Senator Barack Obama was asked why he did not wear an American flag pin in his lapel. While that may be an appropriate question for a presidential candidate, what happens if the issue sparks a political debate around the water cooler?

Can work and politics mix?

Probably not. That's not to say that talking politics at work is unlawful--it's just not a good idea. Politics bring strong emotions that may have no place in the office. Political debates can be loud, distracting, and offensive to colleagues. Let's face it, if you can't talk about who you're going to vote for at a dinner party with friends without stirring the pot, you should definitely think twice about doing it at work.

In fact, an employee's political actions at work can have harsh consequences. Employees should keep in mind that they could be disciplined - even terminated - for promoting their political views in the workplace.

The bottom line is that private employers have a lot of latitude when it comes to what an employee can and cannot say at work; private-sector employees essentially have no constitutional free-speech rights in the workplace.

This is not to say that employers have free reign to control their employee's viewpoints, or to force their own viewpoints upon employees. For example, a Tennessee state statute makes it unlawful for an employer to require an employee to vote a certain way to keep their employment or to threaten an employee with disciplinary action if he does not vote for a certain candidate or party. Notwithstanding Tennessee's unique law, an employer who discriminates against an employee for his political views can be subject to legal liability.

So what's the bottom line? Employees and employers need to be sensitive this election season. Calling employees together to watch the speech of one candidate shouldn't happen. Taking adverse actions against an employee because he expresses his view in favor of a candidate is certainly ill-advised. And management should not send out a memo or an e-mail in support of a political candidate. In short, pause before you ask your colleague where his flag pin is.