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Summer Is Over, But Are The Dog Days Gone? Recommendations For Animal-Presence Policies On Independent School Campuses

[September 19, 2014]  Dog-friendly school campuses have become increasingly controversial in recent months. While there used to be two primary camps (those that encouraged a pet-friendly campus and those that prohibited pets altogether), the lines are getting more blurry (furry?) now. For example, a student may wish to bring the family ferret on campus for show-and-tell or a faculty member may want to nurture hamsters in the classroom to teach students about responsibility. Or a teacher, student, parent or visitor may require a service animal to accompany him or her while on campus.

Adopting written animal-presence policies and practices can help to ensure that a school responds to situations like these in a way that minimizes liability and risk, and maximizes compliance with relevant legal obligations as well as each school’s pet culture.

On the pro-pet side, advocates assert that pet-friendly policies offer benefits like reducing faculty, staff and student stress, improving employee job satisfaction and increasing the overall friendly atmosphere on campus. We see many schools allowing faculty members to keep puppies in the classroom for a few months. But would such a school allow a kitten? A baby snake? How and along what lines do we discriminate regarding pets?

Notably, a service animal may only be lawfully excluded from campus if, after a case-by-case evaluation, a school determines that the particular service animal poses a “direct threat” to the health or safety of others. Thus, the need for a service animal on campus may trump a student or employee’s allergy or pet-phobia (even if deemed a disability under the ADA and thus also requiring an accommodation).

On the no-pet side, one significant risk arises from the possibility that an animal may harm a person, another animal or property. In Massachusetts, for example, an owner or keeper of a dog is strictly liable for the harm it causes. While Massachusetts courts have not addressed the issue of whether an employer may qualify as a “keeper,” two cases in Connecticut have rejected this conclusion under a similar statute. Nonetheless, instances of dog bites in carpool lines are quite common. A school could potentially face liability under a general negligence theory in the event that a pet harms someone or something even if a specific state statute does not address this scenario. Indeed, a school could even be deemed liable to the pet owner if a pet is injured while on campus (accident in the carpool line or such).

In light of these competing schools of thought, independent schools may want to simply prohibit students, their families and employees from bringing any pets or animals on campus. If such a policy seems too draconian (or simply unworkable on, for instance, a boarding school campus), we recommend that schools adopt a written policy requiring anyone who wishes to bring an animal on campus for recreational purposes to sign an indemnification agreement and obtain insurance covering any damage or injury that might be caused by the animal.

If, however, after careful consideration, an independent school decides to welcome pets on campus, we recommend considering some or all of the following policies and practices:

  • Adopt a policy that distinguishes between “pets” and “service animals,” as the two categories should be treated differently;
  • Require pet owners who wish to bring a pet on campus to sign an indemnification agreement and obtain insurance covering any damage or injury by the pet or to the pet;
  • Obtain parental consent from all relevant parents before welcoming pets in the classroom;
  • Establish pet-free areas and/or permit individuals with animal-related issues to work from other locations while animals are on campus; and
  • Implement a protocol for responding to an animal’s aggressive behavior, including banning poorly behaved pets.

If an independent school prefers to prohibit pets on campus, we recommend addressing the following:

  • Adopt a strict no-pet policy that does not differentiate among dogs, cats, puppies, kittens, ferrets, gerbils, etc.;
  • Distinguish between pets belonging to faculty who live on campus and pets that are “visiting” campus; and
  • Clarify that service animals do not fall within the pet policy and that service animals will only be excluded from campus if, after a case-by-case analysis, the school determines that a particular service animal poses a direct threat to the health and safety of others.

In addition, we recommend updating both Employee and Parent/Student Handbooks to address such pet policies.

If you have any questions about best practices for pet-policies and protocols, please do not hesitate to contact a member of the Firm’s Education Practice Group.

Be Careful Out There

[September 3, 2014]  As independent schools, colleges and universities begin the academic year, looking forward to teaching, learning, and growth in the coming year, I want to remind everyone to “Be careful out there!”

In the wake of the Penn State-Sandusky story years ago, New York Times columnist David Brooks offered a sobering reminder that “[u]nfortunately, none of us can safely make that assumption [that we will do the right thing in a moment of crisis]. Over the course of history — during the Holocaust, the Rwandan genocide or the street beatings that happen in American neighborhoods — the same pattern has emerged. Many people do not intervene. Very often they see but they don’t see.”

For that reason alone, we strongly encourage schools to train themselves (students, faculty, and staff) on the kinds of behaviors that are expected at your school, and the kinds of behaviors that are unacceptable. For all educational institutions, this training is an excellent idea.

Now – early in the new academic year – is an ideal time for it. This past July, a New York Times article described the most dangerous stretch for new college students: “the Red Zone, a period of vulnerability for sexual assaults, beginning when freshmen first walk onto campus until Thanksgiving break.”

Of course, for colleges and universities, and other schools that receive federal funding, much of this sort of training is also legally required, under Title IX.

However, age-appropriate training for all students is increasingly recognized as a now-obvious “best practice.” A recent article in the Boston Globe extols the virtues of in-person training, even in middle school, to educate students earlier in their development and maturation: “we should be sending the message earlier — reaching boys in middle school, when the hormones kick in.”

Many SHPC attorneys have just returned from conducting these kinds of trainings for schools (e.g., boundary training for faculty and staff; and anti-bullying, cyber-bullying and appropriate use of social media training for middle school and high school students). These training programs are incredibly well-received by not only the schools, faculty, and staff – but also by the students – as these seminars provide a safe place to talk about challenging situations and sensitive topics.

 So, as you look forward to a fantastic year, remember to protect your students, and faculty and staff, as well. Not only during the Red Zone (between now and Thanksgiving), but also for the entire year.

Remind everyone what it means to be careful out there. That way, if something bad does happen, someone among your students, faculty and staff will really see it and know what to do about it.

Getting Your Head In The Game: School Concussion Policies And Protocols

[August 21, 2014]  With the beginning of the academic year underway or imminent, many students are returning to campus for pre-season athletic training. This school year, however, many schools and student-athletes will be governed by new (and perhaps improved) concussion protocols.

Combatting concussions has become a forefront issue in school athletics. Across the nation, legislatures, student athletic associations, and schools are responding to the demand for more comprehensive concussion policies to better protect student-athletes. Indeed, as of January 2014, every state and the District of Columbia had passed legislation regulating the prevention and management of student-athlete traumatic head injuries. In March, the National Athletic Trainers’ Association (NATA) released a new position statement on the management of sports concussions and offered comprehensive guidelines. And just over the summer, California’s governor signed a law that not only limits the number of tackling practice sessions for young football players—to only two, 90-minute full-contact practices per season—but the law also requires one week on the bench for all student-athletes who suffer a concussion.

Although concussion management laws vary from state-to-state, they generally share three pillars—a return-to-play rule, an informed consent requirement, and an education and training obligation. The return-to-play rules regulate the circumstances in which a student-athlete suspected of having a concussion or head injury must be removed from play and when he or she can resume participating in athletics.

Baseline testing is another tool to help manage sports-related concussions. By requiring students to have a pre-season exam to measure balance and brain functioning, medical professionals can better identify and diagnose post-exam head injuries. While no states currently require baseline testing, Rhode Island strongly encourages all youth sports programs (including those operated by private schools) to adopt the practice; and Massachusetts requires public schools and schools that are members of the Massachusetts Interscholastic Athletic Association to mandate that student-athletes provide head injury medical histories.

At independent schools, administrators, coaches, medical support personnel, students, and parents all play a significant role in protecting student-athletes. To help achieve their goal, we recommend including the following components in a comprehensive head injury policy:

  • An action plan policy for all students participating in interscholastic athletics;
  • Protocols for head injuries, including Return to Activity guidelines;
  • Education for parents and students, coaches, medical support employees, and other relevant persons about recognizing and managing traumatic head injuries;
  • Requests for student-athlete head injury histories;
  • Mandatory baseline testing for all student-athletes;
  • Recordkeeping of all head injuries occurring on and off campus; and
  • Policies for students who are suffering from concussions.

In addition, we recommend updating Athletics Handbooks to address concussion management and other issues such as medical emergencies, practice guidelines, and academic policies related to participation in athletics.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for student-athlete head injury policies and protocols.

Home Sweet Home: It May Not Be So Sweet…

[May 12, 2014]  The media and the government are both paying more attention, and we urge educational administrators to take a second look as well.

The question is whether independent schools, colleges and universities are obligated to treat the rental value and utility costs of a school-owned residence, occupied by a school employee (e.g., Head of School, faculty member), as a component of the employee’s gross taxable income.  In other words, may the school provide housing to the employee as a tax-free benefit, or must the school report the value of the housing benefit on the employee’s W-2 form?

Under the applicable federal legal standard, the default is that an educational institution is obligated to include the rental value and utility cost of the employee’s house provided by the school within his or her gross income, unless the school’s housing arrangement satisfies a “three criteria test.”  The test is whether:  (i) the school’s housing is furnished on the school premises; (ii) the school’s housing is furnished for the convenience of the school; and (iii) the employee is required to accept such housing arrangement as a condition of employment.  Or, alternatively, the school falls within the “qualified campus lodging” exception (i.e., the school’s housing is located on campus, furnished for use as a residence, and the employee pays an adequate rent).

The prongs of these tests are not always easy to satisfy – especially in the context of a day school (non-boarding).  Historically, on-campus housing has been a fabulous perk for educational leaders.  Today, the regulatory environment is such that a formal legal opinion should be rendered as to the taxability of the benefit.  It is no longer sufficient to simply recite that on-campus residence is a requirement of the job – a stronger rationale may be required by the government to satisfy a non-taxable benefit.

In addition, it is important to note that state laws do not always mirror the federal law.  For example, New Jersey tax law uses the three criteria test and does not recognize the “qualified campus lodging” alternative.  Thus, the “qualified campus lodging” benefit could be tax-free for federal purposes, but still taxable for New Jersey purposes.

Analyzing the excludability of housing benefits from an employee’s gross income is highly fact-intensive.  We recommend carefully evaluating the school’s housing arrangement in light of applicable federal and state laws.

Union Rights For Student Athletes? NLRB Decision Creates A Whole New Ball Game For Colleges And Universities

[April 24, 2014] Football players for Northwestern University (the “University”) who receive grant-in-aid scholarships may vote for union representation under federal labor law, according to a recent, controversial ruling by the Regional Director (“RD”) of the National Labor Relations Board (“NLRB” or “Board”) office in Chicago. The secret-ballot election has been scheduled to take place tomorrow, April 25, 2014.

The University has filed a request for review of the RD’s decision by the full Board. If the Board agrees to review the RD’s decision, then the Board could either (i) stay the election pending the outcome of its review, or (ii) let the election proceed, but with the ballots impounded until the review is completed.

If the Board lets the RD’s decision stand (either after review or by declining review), and if in turn, the football players vote to unionize, then the University might refuse to bargain with the union. This would force the union to file an unfair labor practice charge, the first step in a legal process that includes rights of appeal to the United States Court of Appeals and then to the United States Supreme Court. (If the players voted against unionization, then the legal process would end, but the players could seek another union election after one year.)

If allowed to stand, the RD’s ruling would be a “game changer” for many colleges and universities. In this regard, union organizing campaigns targeted toward student athletes, followed by costly collective bargaining involving big-ticket demands, could become the norm.

Background

Earlier this year, a labor organization called College Athletes Players Association (“CAPA”) filed a representation petition with the RD. The petition asked the RD to schedule a secret-ballot election for University football players receiving grant-in-aid scholarships (the “Players”) to determine if they wished to be represented by CAPA for purposes of collective bargaining with the University.

The University objected to the representation petition, primarily on the ground that its football players are not employees and, as such, do not have a right to unionize under federal labor law. In this regard, the National Labor Relations Act (the “Act”) provides collective bargaining rights only to nonsupervisory “employees” of employers covered by the Act. (In the educational realm, the Board generally (i) asserts jurisdiction over private and nonprofit colleges, universities, and other schools with gross annual revenue of $1 million or more; (ii) treats public educational institutions as exempt from the Act; and (iii) declines to assert jurisdiction over employees of religious organizations who are involved in effectuating the religious purpose of the organization. Please note, however, that entities not covered by the Act may be covered by state labor laws.)

The University and CAPA (which, by the way, receives financial support from the United Steelworkers union) participated in an evidentiary hearing at the NLRB and then submitted briefs in support of their respective positions. The briefs were forwarded to the RD for a decision.

The RD’s Decision

The RD concluded that the Players are employees of the University for purposes of the Act. In reaching this conclusion, the RD applied the common law definition of “employee.” Under this definition, an employee is a person who (1) performs services for another, (2) under a contract of hire, (3) subject to the other’s control or right of control, and (4) in return for payment. According to the RD, each of these elements was satisfied.

First, the RD found that the Players’ participation on the football team constituted “valuable services” to the University. He noted that the University’s football program generated approximately $235 million in revenue between 2003 and 2012 through ticket sales, television contracts, merchandise sales, and licensing agreements. According to the RD, the University “was able to utilize this economic benefit provided by the services of its football team in any manner it chose.” The RD also reasoned that the Players’ services have resulted in a winning football program, which has had an “immeasurable positive impact” on alumni giving and the number of applicants for enrollment at the University.

Second, in the RD’s view, the “tender” that each Player was required to sign before the beginning of each scholarship period served “as an employment contract.” The tender is a document providing detailed information about the duration of the scholarship and the conditions under which scholarship funds are to be provided. Noting that the National Collegiate Athletic Association (“NCAA”) prohibits student athletes from receiving additional compensation or otherwise profiting from their athletic ability and reputation, the RD concluded that “the scholarship players are truly dependent on their scholarships to pay for basic necessities, including food and shelter,” making the tender all the more akin to an employment contract.

Third, the RD determined that the Players perform their services under the University’s “strict and exacting control” throughout the entire year. In particular, the RD found that the University requires the Players: (a) to commit 50-60 hours per week to football-related activities during a six-week training camp prior to the academic year; (b) to commit 40-50 hours per week to football-related activities during the “football season” portion of the academic year, despite NCAA rules purporting to limit such activities to 20 hours per week once the academic year begins; and (c) to abide by restrictions governing numerous aspects of their personal lives, including, among other things, their living arrangements, outside employment, and off-campus travel.

Fourth, according to the RD, “it is clear that the scholarships the players receive is compensation for the athletic services they perform throughout the calendar year, but especially during the regular season and postseason.” In this regard, the RD noted that “while it is true that the players do not receive a paycheck in the traditional sense, they nonetheless receive a substantial economic benefit for playing football” in the form of “tuition, fees, room, board, and books for up to five years.” The monetary value of these scholarships, the RD found, was as much as $76,000 per year – and in excess of $250,000 in the aggregate – for many of the Players.

The RD rejected the University’s argument that the Board’s decision in Brown University, 342 NLRB 483 (2004), required a finding that the football players are not employees. In Brown University, the Board ruled that “graduate assistants” who sought union representation were not employees within the meaning of the Act. The RD distinguished Brown University as being premised on a finding that the graduate assistants were “primarily students.” To the contrary, explained the RD, “it cannot be said that [the Northwestern University football players] are ‘primarily students’ who ‘spend only a limited number of hours performing their athletic duties.’”

Implications and Recommendations

If the RD’s ruling is allowed to stand, then student athletes who receive scholarships from colleges and universities are likely to become targeted for aggressive union organizing. This means, in effect, that members of many collegiate football teams, basketball teams, and the like (i.e., student athletes whose teams require them to put in substantial hours and generate substantial revenues, as reflected in the RD’s first and third factors) could opt for representation by CAPA or other labor organizations and then proceed to demand collective bargaining with the institution.

What would the parameters be for collective bargaining involving student athletes? This is far from clear. CAPA’s Web site suggests that, at a minimum, protecting student athletes from injury and assisting with medical expenses would be areas of emphasis. In this regard, CAPA contends that the NCAA denies having a legal duty to protect college athletes from injury; has failed to investigate and minimize concussion-related deaths; and ignores reports that coaches pressure athletic trainers to clear concussed players for action. CAPA also wants to loosen restrictions on how and the extent to which student athletes may be compensated.

Educational institutions – particularly those that generate revenue through their athletic programs – are urged to monitor the Northwestern University case closely. As the matter now stands, the prospect of union organizing campaigns in dormitories and athletic facilities; collective bargaining sessions with union-represented student athletes; and demands for big-ticket items such as guaranteed medical benefits for sports injuries is one step closer to reality. Given what is at stake, the game plan for educational institutions should be to stay informed and, in turn, to be prepared.