Delaware Employment Law Blog

Delaware employers--private and public--may benefit from a recent decision from the Delaware Supreme Court upholding the termination of a school teacher.  The elementary school cited "immorality" as the basis for the termination of a 34-year old male teacher.   Lehto v. Board of Education of the Caesar Rodney School District, No. 175, 2008 (Del. Dec. 2, 2008).

The court held that the teacher, who had a sexual affair with a 17-year old female student, was guilty of immorality.  The student did not attend school in the district where the teacher worked, although her sister did, but the teacher had taught her some years before in elementary school.

The teacher had renewed his acquaintance with the student when she began coming to his school to pick up her younger sister, and they began an intimate relationship. Eventually, the affair became known in the community, and the teacher was charged with fourth degree rape, but the charge was nolle prossed because the teacher was not in a position of trust or supervision over the student. After a hearing, the school board terminated the teacher, who had positive teaching evaluations, concluding that his “engaging in a sexual relationship with a minor . . . violated the common mores of society” and “interferes with [the teacher’s] important function of serving as a role model to the students.”

The termination was upheld by the Delaware Superior Court and affirmed by the Delaware Supreme Court. Even though the conduct took place outside of the school and with a non-student of the district, “there was a proper nexus between his alleged off-duty conduct and his fitness to teach.” Especially interesting and broadly significant is the court's conclusion that the public disclosure of the relationship permitted the inference that allowing the teacher to remain could "reasonably undermine parents' confidence in both [the teacher] and the District."

Private employers are often faced with decisions concerning off-duty conduct of their employees. One rationale that has been applied is whether the conduct, if it became public, could damage the employer’s reputation. Most frequently, the issue arises when employees who enter people’s homes as part of their job are charged with, but not yet convicted, of crimes. This case supports the conclusion that if public confidence in the employer would be undermined by the knowledge that the employer retained an employee who was charged with a notorious crime, that is a sufficient reason for termination.

This isn't the first time off-duty conduct has played a role in the termination of a teacher:

People, don't you understand: More Teacher Social Networking Woes 

Terminating Employees for Off-Duty Conduct 

MySpace and Employment: Another Tale of Woe

Off-Duty Conduct of College Pres Leads to Firing

Employee foibles on social networking websites are back in the news.  According to the Raleigh News & Observer, a teacher in the Charlotte-Mecklenburg Schools may be fired because of derogatory comments about students that the teacher posted on her Facebook page. 

The comments included referring to "teachin' chitlins in the ghetto of Charlotte."  The teacher went on to note in the "About Me" section of her Facebook profile that she is "teaching in the most ghetto school in Charlotte."  She also listed drinking as one of her hobbies.  Apparently, other Charlotte-Mecklenburg teachers also have objectionable Facebook pages as the news story reports that several other teachers from the same district have been also reprimanded for Facebook comments that show, in the district's view "poor judgment and bad taste."   

The U.S. Department of Labor's (DOL), Office of Labor-Management Standards (OLMS), issued a final rule that will provide union members with more complete information about finances held in union trusts.  Union trusts are established and maintained primarily to provide benefits to union members and their beneficiaries, and common examples include credit unions, strike funds, redevelopment or investment groups, training funds, apprenticeship programs, building funds and educational funds. Under the rule, unions will be required to annually file a Form T-1 for trusts in which a union, alone or in combination with other unions, possesses managerial control or financial dominance.

The Form T-1 will use the same basic template as the existing Form LM-2. Only labor unions with total annual receipts of $250,000 or more will need to file a Form T-1. Additionally, labor unions will not be required to file a Form T-1 on trusts subject to certain other disclosure requirements.

The union-trust transparency rule was issued on the same day as the regulations dealing with the Family and Medical Leave Act (FLMA).

William W. Bowser will be presenting at the DELPELRA Fall Conference next week. 

The Conference is targeted specifically to public-sector human resources and labor-relations professionals.  The half-day conference will include presentations on sexual harassment, ADA and FMLA developments, as well as return-to-work strategies for injured employees.  And, at lunch, we are honored to have Delaware Insurance Commissioner and Lt. Governor-Elect Matt Denn will be the featured speaker. 

The conference is being held Tuesday, November 12, 2008, from 8:30 a.m. to 12:30 p.m. at New Castle County Police Headquarters in New Castle.  Tours of this beautiful facility will be offered following the program.

The cost of the seminar is $70 for DELPELRA members and $90 for non-members.  The brochure and registration form are available in PDF format, below. 

The blogroll at the Delaware Employment Law Blog currently houses approximately 150 links to blogs in a variety of topic areas.  I started the links page, which you can find under the "Resources" tab at the top of the page, as a way to store the crazy number of feeds I had collected.  Well, in the roughly 9 months since then, I have managed to accumulate nearly ten times the original amount!  Yes, I've collected roughly 1,500 blog links.  I've been checking the validity of the links and categorizing them in a way that will can understood by "normal people."  While that project is being finished, though, I thought it only due to recognize some of my favorites on the list.  So, with that being said, here are a few posts about work that I hereby deem worthy of a read.

John Phillips at The Word on Employment Law posted on the normalcy of visible tattoos in the workplace. 

Jon Hyman at the Ohio Employment Law Blog has a comprehensive post on the ADA Amendments Act, which is bound to be a hot topic for many months to come.  Not to be accused of showing favorites, but Jon also has an easy-to-understand piece on everyone's favorite intermittent leave under the FMLA and, specifically, the recertification requirements that employers can impose.

The First Amendment Prof Blog directs our attention to a case involving school teachers who've filed constitutional claims alleging free speech violations over a school rule banning political pins worn by employees.

At The New Age blog at the N.Y. Times is a thought-provoking post on the language choices we make called, How Not to Offend the Aging.  Take the opportunity for a refresher in what's ok to say.

I have to give a major shout out to Ask a Manager, who advises job applicants to stop dressing down for interviews at nonprofits.  Amen.  Although there has been a lot of advice in the opposite direction, I stand firm in my belief that it is better to be overdressed than underdressed.  Worst case, you look like an over-eager job candidate, which, in my world, is an excellent quality.  I want candidates to be eager, and passionate, and enthusiastic, about the potential of working at our organization.

By Michael P. Stafford, Esq.

The free-speech rights of a student is the topic of the day in Colorado, where a 5th grader has been suspended for wearing a tee-shirt emblazoned with the slogan "Obama is a terrorist’s best friend."  The student's family claims that his First Amendment right to free speech is being trampled. Conspicuously absent from news coverage of this developing story is any detailed description of the tee-shirt causing "substantial disruption" to the school.

 

Did the school administration make the correct decision in suspending this youngster?

Under well-established Supreme Court precedent, public school administrators may regulate student speech protected by the First Amendment only in three circumstances: (1) when the speech is substantially disruptive; (2) when the speech bears the imprimatur of the school (such as in a school newspaper or yearbook), or; (3) when the speech is lewd or plainly offensive.  In particular, under Tinker v. Des Moines,  393 U.S. 503 (1969), student speech may be regulated only if the school has a well-founded expectation that the speech will cause substantial disruption of the school's operations or interference with the rights of others. The expectation of disruption must be a specific and significant fear of disruption, not just some remote apprehension of disturbance.  In this regard, speech is not disruptive merely because it causes offense or hurt feelings in listeners.

Moreover, any regulation of student speech must also be “content neutral.”  In Tinker, which involved students wearing black armbands to school to protest the Vietnam war, the Supreme Court observed that the school had singled out the anti-war black armbands for prohibition but had not forbidden other controversial or political symbols.  As many courts have noted in a variety of contexts, restrictions on speech because of its message or content are presumed to be unconstitutional. 

Here, the constitutionality of the school's action in suspending the student will likely turn on whether the tee-shirt caused, or was likely to cause, a substantial disruption to the educational environment.  Any attorney representing the student will also look closely at the other types of political apparel students have worn in the past without discipline by the school administration to discern whether the student has been discriminated against based on his viewpoint. 

Savvy employers know the potential value of a sexual harassment policy.  Without an effective harassment policy, employers may not avail themselves of the most common (and successful) defense.  Employers take pains to ensure that their sexual and other types of harassment policies are thorough, are communicated to employees, and are capable of remedying the conduct as promptly and effectively as possible.  

So you can imagine the disappointment of Temple University when the Court of Appeals for the Third Circuit recently struck down the University's sexual harassment policy.  The court held that the policy was overly broad and improperly infringed on the free-speech rights of students.  Public employers should heed this warning--an overly broad harassment policy runs the risk of being invalidated.

And are you wondering what it was that the plaintiff claimed he could not say because of the sexual harassment policy?  The former graduate student who filed the lawsuit claimed that the policy prevented him from expressing his opinions about the role of women in the military.

The plaintiff, Christian DeJohn, was enrolled in Temple's Masters program, where he was pursuing a degree in Military and American History.  The topic of DeJohn's masters thesis was the role of women in the military.  DeJohn argued that the policy restricted his ability to voice his opinions.  After DeJohn commenced his litigation, Temple voluntarily amended the policy.

The Third Circuit found two problems with the school's sexual harassment policy.  First, the policy, which prohibited "all forms of sexual harassment," specifically targeted “expressive, visual, or physical conduct of a sexual or gender-motivated nature when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . of creating an intimidating, hostile, or offensive environment.”  The problem with this language is that the policy barred such conduct regardless of whether it actually had such an effect.

Second, the Court found that the language of the anti-harassment policy prohibited too wide a range of activities, noting that the use of words such as "'hostile,’ ‘offensive,’ and ‘gender-motivated’" were so broad and subjective that they could be applied to just about any speech that is "gender motivated" and that someone finds offensive. 

Savvy employers know the potential value of a sexual harassment policy.  Without an effective harassment policy, employers may not avail themselves of the most common (and successful) defense.  Employers take pains to ensure that their sexual and other types of harassment policies are thorough, are communicated to employees, and are capable of remedying the conduct as promptly and effectively as possible.  

So you can imagine the disappointment of Temple University when the Court of Appeals for the Third Circuit recently struck down the University's sexual harassment policy.  The court held that the policy was overly broad and improperly infringed on the free-speech rights of students.  Public employers should heed this warning--an overly broad harassment policy runs the risk of being invalidated.

And are you wondering what it was that the plaintiff claimed he could not say because of the sexual harassment policy?  The former graduate student who filed the lawsuit claimed that the policy prevented him from expressing his opinions about the role of women in the military.

The plaintiff, Christian DeJohn, was enrolled in Temple's Masters program, where he was pursuing a degree in Military and American History.  The topic of DeJohn's masters thesis was the role of women in the military.  DeJohn argued that the policy restricted his ability to voice his opinions.  After DeJohn commenced his litigation, Temple voluntarily amended the policy.

The Third Circuit found two problems with the school's sexual harassment policy.  First, the policy, which prohibited "all forms of sexual harassment," specifically targeted “expressive, visual, or physical conduct of a sexual or gender-motivated nature when… such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or . . . of creating an intimidating, hostile, or offensive environment.”  The problem with this language is that the policy barred such conduct regardless of whether it actually had such an effect.

Second, the Court found that the language of the anti-harassment policy prohibited too wide a range of activities, noting that the use of words such as "'hostile,’ ‘offensive,’ and ‘gender-motivated’" were so broad and subjective that they could be applied to just about any speech that is "gender motivated" and that someone finds offensive. 

The United States District Court for the District of Delaware has found in favor of a local public school district in a special-education case brought under the Individuals with Disabilities Education Act (IDEA).  The conduct of the parents, said the Court, was a large part of the problem.

The parent involved in the case filed a due-process claim against the District in late 2006, alleging a number of procedural errors.  As a remedy, the parent sought a private placement at The Gow School at public expense. Therefore, the Delaware Department of Education was joined as an additional party to the proceeding.  In a decision issued on January 6, 2007, the administrative due process Hearing Panel found in favor of the District and the Department, and the parent appealed. 

On appeal, both the parent and the District filed motions for summary judgment.   The two key issues raised in the case centered on whether the District denied the student a free appropriate public education (FAPE) by (a) failing to have an IEP in place for the student on the first day of school and (b) failing to properly notice an IEP meeting.  The Court rejected both claims.  

First, the Court noted that "minor procedural violations do not constitute an IDEA violation."  And, "[w]hile the court does not recommend having a disabled child attend school without an IEP, it finds the week delay to be a minor procedural error.  Consequently, the absence of an IEP on the first day of school does not equate to a denial of a FAPE." 

Second, the Court held that the IEP meeting "was merely a continuation" of a prior IEP meeting and as such "no new notice was necessary." Therefore, because there was no denial of FAPE, the Court concluded that the District was not responsible for the costs of the parents' private school placement.

This decision highlights the fact that minor procedural errors do not automatically lead to liability for public school district's under the IDEA.  The case also illustrates the risks run by parents when they cease to participate in the collaborative IEP development process.  Here, the Court specifically noted that it was "convinced that an IEP could have been instituted for [student] after the September 11, 2006 meeting and that none was developed because of the conduct of [student's] mother."  

[Editor's Note:  As usual, the author's humility has led him to omit his role in the case as counsel for the District.  Congratulations to Michael Stafford for securing this important victory for the school district! md]

An officer of the LAPD has sued the City of Los Angeles and its Police Department, alleging First Amendment violations and religious discrimination.  The officer's claims are based on off-duty statements he made regarding the Bible's teachings on homosexual acts. 

The officer, Sgt. Eric Holyfield, a Christian pastor, quoted Bible passages during a eulogy for a fellow officer, explaining that homosexuality "was an abomination" and that persons who engage in homosexual conduct "must repent or be condemned to hell."

According to

Holyfield was removed from his "coveted assignment in Community Relations" and assigned to patrol "without due process and in violation of his First Amendment rights." 

To survive dismissal of a First Amendment claim, a public employee must sufficiently allege that he was acting in his capacity as a citizen--not in his employment capacity.  This has been a difficult burden for many plaintiffs to overcome.  Here, Holyfield is apparently aware of the requirement.  He alleges that his speech was made in his role as a minister in the community, not a police officer.  He also points out that he was on vacation that day, he was in a church, which was outside the city, and was dressed in civilian clothes.  All of these factors weigh strongly in favor of a finding that he was not speaking as a police officer when he gave the sermon that resulted in his transfer. 

Given the fervor relating to Barack Obama's ties to Reverend Jeremiah Wright, it will be particularly interesting to see whether Holyfield's First Amendment and religious discrimination claims will survive a motion to dismiss.

As layoffs increase, so do claims of age discrimination. Age-based harassment, though, is less common.  A 49-year-old aide to former Ohio AG Marc Dann claims that Dann's managers used profanity and called him a "dinosaur," resulting in what he claims was harassment and age-discrimination.  This claim comes in the middle of an already scandalous period for the former AG, who has been accused of fostering an unlawfully hostile work environment.

This story comes from the Zanesville Times Recorder's article, "Complaint: AG's office discriminated and harassed."

Dann (pictured) and some of his aides have been in the middle of a sexual-harassment scandal, resulting in the AG's departure from office.  David Kessler, who has filed a complaint with the EEOC against the AG's Office, said that the scandal supports his allegations of abusive behavior. 

Kessler was hired in 1999 and investigated crimes against the elderly.  Kessler claims that, when he took office in January 2007, Dann installed new aides and things went downhill from there.  He claims that he was targeted because he had been hired during the prior administration, which Dann had defeated to take office.  Kessler says that he was told that he could either quit or be fired, so, in January 2008, he quit.

Then, in April 2008, Dann admitted to having an extramarital affair with a staffer and resigned amid allegations of a sexually hostile work environment.  Two female employees claimed that their supervisor had made sexual advances and comments toward them.  Those allegations triggered an investigation leading to other unsavory discoveries.

From a legal perspective, this recent claim is quite different than the original claims of sexual harassment.  Those claims were based on the allegation that the women were being treated less favorably because of their gender.  Here, Kessler seems to really be claiming that he was treated less favorably because of his political affiliation with the prior administration.  Unfortunately for Kessler, such discrimination in politics is often legal, depending on the nature of the position.  If Kessler was a top aide, in a position of trust and authority, then the AG likely did have the right to "discriminate" against him if the AG believed that Kessler's political affiliations prevented him from giving his full loyalty to his new boss. 

And that is where the age-discrimination claim comes in.  If Kessler's claim for political association (a constitutional claim brought pursuant to the First Amendment's Right to Freedom of Association), is tossed by the EEOC or the courts, he'll have the age claim to fall back on.  However, given his actual age (49), the "back-up" argument may be hard to swallow.  Especially if the alleged harassers were older than Kessler.  If an employer really does harbor an age-based bias against employees aged 49 and above, it will soon run out of people to employ.

Then again, the allegation of direct evidence of age-based hostility, i.e., the "dinosaur comment" might be enough for the age-discrimination claim to survive, for now.

See also:  Delaware District Court Awards Summary Judgment to Employer in EEOC Suit for Age Discrimination

Employers should be aware of several employment and labor law initiatives in the state and federal legislatures.  Congress currently is considering the Employee Free Choice Act (EFCA), and the RESPECT Act, for starters. And the Construction Industry Independent Contractor Act, which was quietly passed by the Delaware and Pennsylvania Houses poses serious risks to employers in the construction trade.

Employee Free Choice Act

The EFCA could be a silent killer.  It has managed to keep a very low profile during its months-long visit to Capital Hill.  In short, it would eliminate the secret-ballot vote and would require employers to recognize a labor union without an election.  The long-unchanged law currently requires employers to choose between recognizing the union and a secret-ballot election if more than 50% of employees in a bargaining unit sign a union authorization card. 

If passed, the EFCA would change this procedure entirely.  Employers would have to recognize the labor union immediately if more than half of the workforce signs union cards.  And, to make it worse, there's not much an employer can do about it.  Union campaigns can be fully underway before the employer even learns about it.  And interference in card-gathering activities would subject the employer to civil penalties.

RESPECT Act

The unfortunately named RESPECT Act poses another labor-related threat to employers in the construction industry.  The "Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act" would amend the National Labor Relations Act (NLRA) by redefining the definition of "supervisor."  If passed, the RESPECT Act would eliminate the current requirement to obtain supervisor-classification that the employee must posses the authority to assign work to others and to responsibly direct employees.  Instead, the definition of supervisor would be much more difficult to satisfy.  The proposed definition would require the employee to exercise authority over employees for a majority of his or her working time.

There is a giant leap from possessing authority and exercising that authority for a majority of working time. 

We've posted about the state-level initiatives that would criminalize misclassification of employees as independent contractors that have passed the House both in Delaware and in Pennsylvania.  It may be that the definition of "independent contractor" becomes key in avoiding a criminal conviction.  The EEOC provides a non-exclusive list of 17 factors, as well as examples of the factors in use, for use in making that determination.

Helpful Resources

Kris Dunn at The HR Capitalist has a persuasive post about the Employee Free Choice Act and the potential catastrophe it could cause if passed.

The American Nurses Association, which is very pro-RESPECT Act, has a current list of the legislators who support the bill--check to see if your state's legislator is one of the them.  If he or she is on the list, put pen to paper and tell your elected officials what you and the entire industry stand to lose if the RESPECT Act is passed.

The Department of Justice has been sued by an employee who alleges racial discrimination and sexual and race-based harassment. 

A 13-year veteran paralegal in the Civil Rights Division of the Department of Justice (DOJ) has filed suit claiming she was discriminated against and harassed by managers who repeatedly passed her over for advancement because she is African-American. Joi Hyatte alleges that the DOJ "actively" sought only white and Hispanic candidates for higher-paying analyst positions.

The complaint also says that the section chiefs failed to rein in or discipline three white male lawyers who "behaved in a racially and sexually offensive manner" toward two female analysts -- one white, the other black. 

The attorneys mocked the Caucasian analyst for displaying pictures of prominent African-American civil rights activists and leaders on the walls of her office. They also commented that she had a 'tight ass' and referred to both women as 'lesbians' and 'carpet munchers.'

David Vladeck, a professor at Georgetown University's law school, is representing Hyatte.  He says at least six other African-Americans in the voting section have complained of similar treatment, filing internal complaints with the DOJ's EEO Office.

Hyatte does not seek the normal damages.  She wants to be promoted to analyst and seeks back pay for the period that she had been performing analyst work without receiving the title or the pay that goes with it.  Law.com has complete coverage of this developing story, Civil Rights Division Employee Sues DOJ, Alleges Discrimination.

It's not very common, but it does occasionally happen that a government agency is charged with committing the very same offenses that it is charged with eradicating.  See my earlier post, Some Might Consider It Ironic:  EEOC Charged With Violating the Overtime Exemption of the Fair Labor Standards Act.

The United States Supreme Court is anything but anti-employee.  The Supreme Court's decisions in Cracker Barrel and Gomez-Perez, filed yesterday, continue to broaden the limits of Section 1981 in favor of employees.

Recently, employee-advocate groups have made great sport out of attacking the Supreme Court’s employment-discrimination decisions--using them to raise the hue and cry for legislative reform. This week's rulings in CBOCS West, Inc v. Humphries (the “Cracker Barrel” case), and Gomez-Perez v. Potter show that employee advocates and plaintiffs’ lawyers have little to complain about.

The Background of Section 1981

The Court's 7-to-2 ruling in the Cracker Barrel case addressed a novel question of law: Whether there can be a claim of unlawful retaliation based on Section 1981. Section 1983, originally known as the Ku Klux Klan Act, was passed in 1871 during Reconstruction following the civil war.  The law was intended to provide a federal remedy for private conspiracies such as those being committed by the KKK, which the Southern state courts had been unsuccessful in prosecuting. In short, the law prohibits discrimination based on race in all aspects of contractual relationships, including written and unwritten employment contracts.

But Section 1981 contains no anti-retaliation language at all. What’s more, when Congress amended the law in 1991, it did not add an anti-retaliation provision.  By that time, many other anti-discrimination statutes had been enacted to explicitly included anti-relation provisions. Nevertheless, in yesterday's Supreme Court opinion by Justice Breyer, the Court concluded that retaliation claims may brought under the statute and are “well embedded in the law.”

The Significance of the Cracker Barrel Decision

The ruling is significant in at least two ways. First, unlike the perhaps more familiar racial discrimination claim under Title VII, damage awards under Section 1981 do not include monetary caps. Employers are therefore exposed to substantially higher damage claims.

Second, Section 1981 claims do not require an administrative filing with the EEOC. The statute of limitations for such claims is much longer for these claims as compared to Title VII.  The statute of limitations in a Section 1981 claim is borrowed from state law.  The limitations period from the analogous intentional tort claim is applied unless the limitations periods vary for different intentional torts.  In that case, the state's general personal injury statute of limitations should apply.

For Delaware employers, that means that, whereas a Title VII employee-plaintiff has 300 days to file a Charge of Discrimination, a Section 1981 plaintiff has more than twice as long, four years, to file a complaint in federal court. Further, since no administrative filing requirement exists under Section 1981, the employer may be unaware of a potential claim for a lengthy period of time.

The Significance of the Gomez Ruling

The Gomez decision is less significant in that it only applies to federal employees. In Gomez, the U.S. Supreme Court, in a 6 to 3 ruling, found that a cause of action for retaliation existed for claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA has an explicit anti-retaliation provision applicable to private sector employees but no anti-retaliation provision applicable to federal workers. The High Court, nevertheless, concluded that Congress “intended” that retaliation be considered another form of “intentional discrimination” under the law.

Cracker Barrel and Gomez continue the Supreme Court trend that began with the Burlington and Faragher decisions, issued in 1998.  Since those rulings, the Court has taken an expansive view of anti-retaliation claims.  It will be interesting to see whether pro-employee groups and Plaintiffs' lawyers will be satisfied by these decisions in light of the decidedly expansive view of employee-retaliation rights that the Court has adopted.

 

Additional Resources:

The Legal Information Institute (LII) at Cornell has an excellent summary of the Cracker Barrel decision, as well as links to the actual decision and the numerous briefs.  The Gomez decision is also posted at the LII website.

HR Hero is an excellent resource for more information on the broader topics that were addressed in these cases, including Section 1981, Employment Retaliation, and Age Discrimination in Employment (ADEA).

 

[Update May 29, 2008:  SCOTUS Blog also has an in-depth analysis of both cases from the plaintiff-employee perspective.]

The Third Circuit has ruled that attorney-parents cannot recover fees for legal services performed on behalf of their children in administrative hearings or judicial proceedings under the Individuals with Disabilities Education Act ("IDEA") .  Although the IDEA contains a fee-shifting provision for parents who are "prevailing parties," it does not apply to fees for parents representing their children in legal proceedings.  Previously, in Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129 (3d Cir. 2001), the Third Circuit had held that parents serving as an attorney cannot recover fees for administrative proceedings under the IDEA.  The Pardini decision clarifies that the bar to fee recovery is equally applicable in judicial proceedings.

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!!]

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.

Governor Minner has signed House Bill 283 into law.

This bill amends the Delaware Public School Employment Relations Act. As a result, interest arbitration will now be used to resolve impasses in collective bargaining between Delaware public school districts and their organized employees. Binding interest arbitration replaces non-binding “fact finding.”

Under binding interest arbitration, an arbitrator determines the final terms and conditions of employment by selecting one of the parties’ “last, best, and final” offers. This process has been used in negotiations involving other Delaware public entities for several years.

The arbitrator looks at seven factors in determining whether to accept the employer’s or the union’s offer:

(1) The interests and welfare of the public.

(2) Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees with other employees performing the same or similar services or requiring similar skills under similar working conditions in the same community and in comparable communities and with other employees generally in the same community and in comparable communities.

(3) The overall compensation presently received by the employees.

(4) Stipulations of the parties.

(5) The lawful authority of the public school employer.

(6) The financial ability of the public school employer based on existing revenues, to meet the costs of any proposed settlements

(7) Such other factors which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, binding interest arbitration or otherwise

With the exception of paragraph (6) of above, no single factor in subsection, shall be dispositive.

The parents in the group might need to sit down for this story. . .

In a bizarre and frightening incident, a middle school girls’ softball coach at the Seaford School District apparently injected one of the girls on his team with an adrenaline-filled Epi Pen--not to save her life by combating an allergic reaction—but apparently in retaliation for lackadaisical play on the field.

The girl’s family is now suing the school district for failing to properly and thoroughly verify the coach’s background.

Hiring is one of the most important decisions any employer can make. A failure to carefully screen employees can not only result in adding underperformers to your workforce, it can result in exposure to theft, violence, and legal liability.

This recent incident in Seaford underscores the importance of a thorough and productive background check. But how do you get real, useful information in a world where many employers are advised to divulge only “name, rank, and serial number” of their former employees?

Tips for Conducting An Effective Background Check:

1. Get a release - the best way is to reduce the fear of a lawsuit. Get a release of liability from the applicant whose references you are checking, and provide it to the employer. Common sense dictates that the chance of a lawsuit will be substantially reduced when the potential plaintiff has already authorized the release and discussion of employment-related information.

2. Inform of Delaware’s reference check law - you should also tell your contacts about Delaware's reference check law, which gives former, current, and prospective employers immunity from a lawsuit for providing references in "good faith." Better yet, give them a copy of the law to review and provide to their legal counsel.

3. Say the password - most experienced HR professionals you contact will be just as frustrated as you are about the inability to get information about prospective employees. As a result, you might want to give them the opportunity to help you out and still sleep at night. Try asking whether the applicant is "eligible for rehire." A negative answer might be just what you need to steer clear of an individual.

4. Find a secret source - another way to get information is to go directly to the applicant's supervisor. That person will have the most information and will be more likely to provide it than the HR department. Of course, you want to prevent such a maneuver against your company, so make sure you constantly remind your own supervisors about your policies on background checks and that all inquiries should go through HR.

5. Go public - your high-school principal was right when he warned you that your youthful transgressions would be "on your permanent record." Criminal arrest and conviction records are a matter of public record. They are not only public but also easy to get, at least for offenses committed in Delaware. A visit to the prothonotary (clerk) in the state courthouse located in Wilmington, Dover, or Georgetown can get you free access to an applicant's arrest and conviction record free of charge.

6. Visit cyberspace - another source of information is the Internet. Search engines like Google can scour the Internet for websites, newspaper articles, and postings by applicants. Similar checks on social networking sites like MySpace and Facebook can provide useful information as well. Use of such searches is becoming common. A 2006 survey by CareerBuilder.com indicated that 26 percent of hiring managers have used the Internet to collect information on applicants. Half of those managers said they had accessed personal information on social networking sites.