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What Keeps You Awake At Night? Defining The Appropriate Scope Of A Campus Safety Audit

May 2013 by Sara Goldsmith Schwartz

[May 13, 2013]  These days, I hear Business Officers, Heads and other educational leaders struggling with identifying the appropriate scope of a campus safety audit. So I thought I would try to help.

The threshold question is whether every school needs to conduct a safety audit this summer. In light of the numerous recent traumatic events in our educational community, and in the world around us, I do believe that it is appropriate for the Head and other school leaders to spend at least a few hours discussing safety on campus, prior to the opening of the school year in the fall. Does this mean that each school must engage an outside vendor? Does this mean that each school must spend hundreds of thousands of dollars that were not budgeted and are likely not available? Not necessarily.

The most important first step is to examine the likelihood of certain risks on campus. This can be done quite quickly. Often, I use the short-hand technique of asking administrators: “what keeps you up at night?”  If you go around the table and ask this question of each school administrator, you will quickly pinpoint certain real risks on campus.

Alternatively, we work with schools to define the appropriate scope of a safety audit through use of a questionnaire. We have developed a comprehensive document that allows us to quickly, within 45 to 90 minutes, identify the greatest risks on campus. This document can be used as a blueprint for prioritizing each school’s focus areas.

In sum, while I do believe that every independent school needs to spend a few hours examining campus safety this summer, it need not destroy the school’s budget.  Frankly, this would probably be wise to do every summer.

As you embark on this journey, consider the following contenders for top safety audit priorities:

  • Crisis management plan (if you have one, be sure it’s been vetted by experienced education counsel, as the vendors do not consider the legal ramifications of  plans; not even former and current law enforcement personnel);
  • Background checks;
  • Trip compliance; and
  • Campus safety and security (locks, security personnel, emergency notification system, etc.)

Finally, try to focus on the risks that are most likely to occur, as opposed to the worst-case scenario risks that are highly unlikely.  Budgets are limited and prioritizing is essential.

Final note: be 100% sure that counsel is involved in this prioritizing process, so that the entire process can be cloaked in the attorney-client privilege to the extent permissible in each state.

As always, please do not hesitate contact us with any questions.

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Facebook Evidence May Be Discoverable: Ask For It! (Preserve It!)

May 2013 by William E. Hannum III

[May 13, 2013]  A federal judge in New Jersey recently sanctioned a plaintiff for deleting his Facebook account, which purportedly contained photographs and other information that contradicted his personal injury claims against the defendants.

The plaintiff had agreed, as part of discovery, to provide the contents of his Facebook account.  Instead, he deleted it.

As a sanction, the court agreed to provide a spoliation instruction at the trial, instructing the jury that it may draw an adverse inference from the plaintiff’s destruction of the evidence.

The decision serves as a reminder that employers should seek discovery of from the Facebook and other social media accounts of plaintiffs in employment litigation.  (Ask for it!)

It is also a reminder to businesses that they must ensure that their managers and other decision-makers do not destroy such evidence, if it exists.  (Preserve it!)

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Schwartz Hannum Provides Pro Bono Services To Back Bay Businesses

May 2013 by Hillary J. Massey

[May 2, 2013]  As described in a recent Boston Business Journal (“BBJ”) article, Schwartz Hannum has volunteered, through the Boston Bar Association, to provide pro bono legal services to businesses affected by the Boston Marathon bombings.  Such businesses may face difficulty obtaining insurance coverage for property damage and business interruption, and may need to provide accommodations for injured employees.  Another issue flagged by Will Hannum in the BBJ article is whether workers’ compensation insurance will cover injured workers.

Emphasizing that this crisis presents unique challenges, Will explained to the BBJ:  “This is a situation in which [business owners and employees] are going to work together and get through it together.”  The goal for employers is to do so in a way “that will be in the employers’ best interest at the same time as the employees’ best interest.”

As reported in the ABA Journal, Will has also explained that businesses could “get themselves in trouble” if they take actions perceived as unfair, such as firing employees who are too upset to work.

Schwartz Hannum looks forward to assisting Back Bay businesses with practical, creative, and thoughtful solutions to these challenging issues.

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Getting It Write: Does Your Student Handbook Create A Contract?

April 2013 by Sara Goldsmith Schwartz

[April 29, 2013]  In a stark reminder for schools across the country, a federal court in Massachusetts recently allowed a lawsuit to go to trial on the question of whether an independent school breached its contract with a student by failing to follow the school’s student handbook. The Judge opined as follows: “the policies, regulations and procedures contained in the student handbook are contractual in nature and binding on the school and its students.”

At the Firm, we are seeing a significant increase in cases around the country brought under similar theories.  For instance, one of our school clients was recently sued (as well as the Head of School, Associate Head of School, Head of the Upper School, Board Chair and athletic coach), on a theory that the bullying plan was contractual as it was included in the student handbook, which the family alleged created a contract.

As school winds down for the year, now is the time to ensure that your student handbook is accomplishing the goals that you have established.  We urge you to contemplate these questions:

  • Do you want your students to be required to follow the student handbook?
  • Do you want your school to be required to follow the student handbook?
  • Do your students and/or parents sign an acknowledgment form for the student handbook?  If so, does the acknowledgment form create a contract or not?
  • Does your enrollment agreement reference the student handbook? If so, does it incorporate the student handbook into the enrollment agreement or simply reference it?

These questions should be considered within the context of relevant case law pertaining to student handbooks and student handbook disclaimers in each state.

We encourage each school to carefully contemplate the answers to these questions and to strive to ensure that all relevant school documents are coordinated in order to accomplish the school’s goals.

Please do not hesitate to contact us to discuss the interplay between your student handbook and the applicable state law that governs your student handbook.

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Are Whistleblower Claims The New Retaliation Claims?

April 2013 by William E. Hannum III

[April 26, 2013]  A recent New York Times article serves as a reminder that whistleblower claims seem likely to be one of the fastest growing types of employment law claims in coming years. They present employers with the same type of challenge that retaliation claims present: a coincidental chronology — (alleged?) complaint followed by termination — that will often get the case to the jury, regardless of the underlying merits; and where the jury will then decide the case based on factors (if not facts) known only to them. As a result, employers are well-advised to empower human resources and counsel to develop policies and training to mitigate their whistleblower risks.