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Yes Means Yes. Everything Else Means No.

If you see something, say something.

[September 28, 2015]  The headlines and news stories recently coming out of a Concord, NH, courtroom can seem overwhelming. The tale is a tragedy. The lives of two teenage students at an excellent school veered terribly off course.

What can we learn from this? How can we try to prevent the next tragedy?

We want to find ways to reduce the risk of future sexual assaults. We want to have better policies, better education – for potential victims, for potential perpetrators, and for the bystanders (whether peers or adults) who might intervene and prevent the next sexual assault.

What Happened In Concord?

By way of background, the prosecution argued that the defendant (as an 18 year old senior at the School) had emailed the victim (a 15 year old freshman), to invite her to join him for a “senior salute.” He wrote to her, “I want to invite you to come with me, to climb these hidden steps,” to a place “locked since before we were born” (the mechanical room on campus, where a sexual assault occurred).

This was allegedly part of an annual, unofficial School ritual, called the “Senior Salute,” in which senior males tried to “slay” females in lower grades, and in which the male students competed to be “No. 1 in sexual scoring.”

The Verdict

The jury found the defendant not guilty of three counts of aggravated felonious sexual assault, each of which carried a penalty of 10-20 years in prison.

The defendant was also acquitted of a simple assault charge (allegedly biting the girl’s chest).

However, the jury found that the defendant was guilty of three counts of misdemeanor sexual assault. These counts are premised in part on the fact that the victim was under the age of 16, and thus legally could not consent to the sexual encounter. Each count carries a prison term of up to one year, and sex offender registration for up to 10 years.

The jury also found the defendant guilty of endangering the welfare of a child, by soliciting the victim (under the age of 16) to engage in sexual penetration.

Finally, the jury found the defendant guilty of unlawfully using a computer to solicit a child, which is a Class B felony punishable by up to 7 years in prison and carrying lifetime sex offender registration. Thus, unless this conviction is overturned on appeal, this young man will be a registered sex offender for his lifetime.

Policies & Education:

  • Yes Means Yes. Everything Else Means No.
  • If You See Something, Say Something

What can independent schools do to reduce the risk of something like this occurring on their campus?

1.  Review & Improve Policies & Procedures. School administrators should carefully review and improve (if possible) policies and procedures related to issues of sexual assault, to make sure that the school follows best practices. Sometimes this will be tailored to the school’s culture, and sometimes it may be the culture itself that needs a second look. This policy audit should also include a thorough examination of all student sexual conduct policies (such as parietals), including policies that address consent, sexual assault and sexual harassment, bullying and hazing prevention and intervention plans, prohibitions against cyber-bullying and sexting, acceptable use of technology and discipline policies, and policies related to mandated reporting.

2.  Review & Evaluate School Traditions. School administrators should carefully review the school’s culture, traditions and other practices in light of the Concord case, and abolish or amend these traditions or practices to ensure that students are kept reasonably safe.

3.  Review & Improve Employment Policies. Schools should also conduct a careful review of employment policies, such as mandated reporter policies and training, the hiring procedures for all employees, as well as policies governing everything from the athletic department, to dormitory life, school trips, and any other circumstances in which students might foreseeably engage in unlawful or dangerous behavior.

4.  Enhanced Education For Students. In recent years, more independent schools are providing “Boundary Training” for students, to educate them about acceptable behavior. Such training should continue, but more robust boundary training is needed to educate students about the state laws governing consent and sexual assault, in addition to education about which behaviors are generally acceptable and unacceptable.  Multiple sessions in small groups, where students are given opportunities to engage with educators on this sensitive topic, are likely to provide a safe space for students to ask questions and absorb the information.  It is particularly important that the topic of consent be addressed, including the fact that it seems that the definition of consent is evolving, most recently to affirmative consent: Yes means yes. (And just to be clear: Everything else means no.)

This enhanced education for independent school students might well be viewed as a kind of precursor to the training that colleges and universities are in essence required to do. Institutions of higher education provide sexual assault prevention training for their students, pursuant Title IX. Clearly, independent school students could benefit from an age-appropriate version of such training, not only in their high school years, but also in preparing them for collegeSome people think that an age-appropriate version of this enhanced boundary training should start as soon as fourth grade. 

5.  Enhanced Education For Faculty And Staff. Likewise, independent schools should continue and expand on the trend of providing “Boundary Training” for faculty and staff. More of this broad-based boundary training is needed, particularly to educate all school employees about each school’s potential liability when students engage in conduct on campus or sanctioned school events that violates state criminal laws. While many school employees seem reluctant to embrace the quasi police-like role inherent in such training, it seems too important to ignore in light of recent events in Concord.

In addition, this enhanced boundary training for school employees should also strongly reinforce the idea that if you see something, say something. We do not want more stories of coaches or janitors who did not get the training needed to know what to do when they saw an old man taking a shower alone with a young boy. Educate all employees. Empower all employees to do something.

Thus, for example, if you see an 18-year old senior going off into the dark, late at night, with a 15 year old freshman, say something, do something.

6.  Educate Parents And Board Members. Some version of boundary training should also be provided to parents and Board members, to make sure the entire school community understands what behavior is unacceptable. The potential for student sexual misconduct is not only a problem on boarding school campuses, and schools need to assist parents of day students in establishing appropriate guidelines when hosting social events in private homes or venues, off campus.  And to be sure that the students know that everyone knows the rules, and that it is safe to talk to anyone about unacceptable behavior.

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Let your school’s words and actions say clearly to everyone in the community that student safety is paramount, and that each member of the community is strongly encouraged to do his or her part to make it safe for everyone.

Yes means yes. Everything else means no.

If you see something, say something.

 

Obamacare Delayed Again: Medium-Sized Employers Not Required To Provide Health Coverage Until 2016

[February 14, 2014]  Employers with 50 to 99 full-time workers now have an additional year to “play or pay” under the Patient Protection and Affordable Care Act (“ACA”), i.e., to offer health insurance to full-time workers or pay a fee.  Newly issued final rules require these mid-size employers to offer coverage by 2016, instead of 2015.  To be eligible, an employer must certify to the U.S. Treasury Department that it has not laid off employees in order to fall below the 100-employee threshold.  Although not required to provide coverage in 2015, mid-sized employers must still comply with reporting requirements in 2015.

Employers with 100 or more full-time equivalent employees are still required to provide coverage no later than January 1, 2015, or the start of their plan year in 2015 (for non-calendar year plans).  However, to avoid paying a penalty, such larger employers must offer coverage only to 70% of their full-time workers in 2015.  Beginning in 2016, employers must offer coverage to at least 95% of full-time workers.

In order to prepare for 2015, larger employers may use a look-back period during 2014 to determine whether an employee is a full-time employee under the ACA, i.e., works 30 hours or more per week.  (While there are bills pending in Congress that would change the ACA’s definition of full-time employee from the current 30-hour per week rule to a 40-hour rule, the bills have little Democratic support.)  Although it may be tempting to wait and see what further delays or changes may come, larger employers should begin now to prepare for 2015.

The President’s Challenge: Stop Sexual Assaults

[January 23, 2014] The White House report released yesterday (“Rape and Sexual Assault- A Renewed Call To Action“) is a stern reminder that all educational institutions — not just colleges, universities and other federally-funded institutions that must comply with Title IX — have a moral, if not legal, obligation to take all reasonable measures to reduce sexual violence and misconduct at their institutions.

The data and numbers highlighted in the report are noteworthy.

  • Nearly 1 in 5 women (22 million) have been raped in their lifetime.
  • Almost 1.6 million men have been raped in their lifetime.
  • Nearly half of female survivors were raped before they were 18.
  • 1 in 5 women was sexually assaulted while in college.
  • Assaults in college appear to be fueled by alcohol and drugs, often occurring at parties.
  • Most victims know their perpetrator.
  • 12% of high school girls report having been forced to have sex.

The costs of sexual misconduct are significant. They include not only the potentially irreparable damage to millions of young victims and survivors, but also potentially staggering litigation costs (which are not limited to attorneys’ fees), and damage to an educational institution’s reputation.

The President’s announcement and the Vice President’s leading role demonstrate the White Houses’s commitment to this issue. Thus, among other things, the White House has stepped up federal compliance and enforcement efforts. Colleges and universities have been well-advised to take notice. But rededication of efforts is now in order.

Accordingly, independent schools should now take note. We strongly encourage our secondary schools to act to reduce the risk of sexual misconduct on their campuses and to prepare their students to act appropriately when they get to college.

With this in mind, colleges, universities, and independent schools should:

  • Focus violence prevention education on perpetrators, survivors and bystanders. This should include getting men more involved, by educating the potential perpetrators, and by seeking the commitment and support of bystanders.
  • Educate (require attendance at preventive education programs) for faculty, other employees, and all students, providing information about the institution’s policies, practices and resources regarding sexual assaults and sexual misconduct. This will generally be tailored to the audience members’ ages and each institution’s campus and culture. For example, we are currently providing boundary training (‘Shades Of Grey And Blurred Lines’) at many schools.
  • In addition, schools may want to address these issues directly (bluntly) with applicants, to set an appropriate tone early on and discourage applicants who might be inclined to engage in misconduct.
  • Explore various ways to engage students, looking for whatever may generate their greatest involvement.
  • Understand your institution’s culture, and take appropriate action to redefine it if necessary. (Examine, and learn from, your institution’s past.)
  • Update policies and practices for responding to allegations of sexual misconduct and violence. This should include a review of disciplinary consequences.
  • Properly educate school officials responsible for responding to complaints. This will include education on a range of issues, including training for investigators and adjudicators involved in handling complaints of sexual assault (something that we have been doing for our clients recently, as well).
  • Consider whether the institution is properly organized (e.g., should HR be a separate department, as was recommended for Penn State by the Freeh Report); does it have the necessary resources to effectively administer and enforce the institution’s policies and protocols?
  • Provide survivors with appropriate resources and remedies to continue their education.
  • Address the need for fairness to the accused throughout the institution’s policies, protocols, and training, including the potential for false accusations.
  • Develop and maintain strong relationships with local law enforcement.

In short, institutions should update policies, practices and protocols, implementing best practices for preventing and responding to sexual misconduct, sexual assault, and rape.

The value of these measures may be obvious to those who have closely followed the stories at institutions in the headlines, from Penn State to Horace Mann, from Amherst to Deerfield. The challenge is not knowing what to do, in general. The challenge is in deciding to do it and tailoring these measures to your institution.

We are able and willing to assist.

Sara Goldsmith Schwartz, William E. Hannum III and the Education Team at Schwartz Hannum PC

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An article written by William E. Hannum III entitled “The Right Thing To Do: Preparing For And Responding To Allegations Of Sexual Abuse At Independent Schools” may provide additional, helpful guidance.

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William E. Hannum III is speaking on this topic at the Policy Institute, at independent schools and universities from Virginia to California, Indiana and Missouri.  Please join him! For more information, please click here.

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For a copy of the White House report, please click here.

Massachusetts Employers Not Required To Offer Section 125 Plans

[November 25, 2013]  The Massachusetts Health Connector has announced that it will no longer enforce several of Massachusetts’ health reform requirements, including the law requiring employers to provide a Section 125 Cafeteria Plan or pay a surcharge.

According to the Connector, the Section 125 requirement is incompatible with recent guidance from the Department of Labor (“DOL”) about the Affordable Care Act.  Governor Deval Patrick will pursue legislation to repeal the state’s Section 125 requirement, the Employer Health Insurance Responsibility Disclosure (Employer HIRD) form, the Free Rider Surcharge, and the recently created Section 125 Notification Requirement.  In the interim, the Connector will not enforce these requirements.

Pursuant to the DOL’s guidance, Massachusetts employers may no longer offer Section 125 plans that allow non-benefits eligible employees to purchase their own non-group health insurance using pre-tax income.  Employers may, however, leave such plans in place until the expiration of the employees’ health plans in 2014.  Employers should discuss with benefits counsel any necessary amendments to their Section 125 plan documents.

This change does not affect Section 125 plans for benefits-eligible employees:  employers may continue to offer such plans and may continue to allow employees to pay their group health insurance premiums on a pre-tax basis.

Mass Emails From The EEOC: Abuse Of Power?

[November 20, 2013]  Should the EEOC be allowed to send an e-mail to 1,000 employees of a company, at their work e-mail accounts, to hunt for evidence against the company?  One New York employer has sued the EEOC in federal court challenging the EEOC’s use of this tactic.

The EEOC’s e-mail told employees that the EEOC was investigating claims of discrimination by the employer, and contained a link to an internet survey about the employer.  The employer apparently did not receive advance notice of the email, and the email did not specify that the EEOC’s inquiry was limited to age discrimination claims and that no finding of discrimination had been made.

The employer sued the EEOC pursuant to the Administrative Procedures Act and the U.S. Constitution, claiming that the e-mail was an abuse of power, an unreasonable search in violation of the Fourth Amendment, and an infringement on the employer’s constitutional right to due process.  The lawsuit seeks an injunction that would prohibit the EEOC from using any information it gathered through the mass email.

The EEOC has moved to dismiss the suit, arguing that other methods of communication would have had the same impact, and that the e-mail was within the EEOC’s investigative power.  The court has not yet ruled on the motion.

Keeping Score: Court Approved Settlement Of Wage Class Action

[November 15, 2013]  The “scorecard” in a recent, relatively small class action settlement in Massachusetts seems to offer insight in such questions as: Why do class actions get litigated – and almost always settled?  Who are the real winners and losers?

A federal district court judge in Massachusetts recently approved a $2.2 million settlement of claims that a Massachusetts hospital violated the Fair Labor Standards Act (“FLSA”) and the Employee Retirement Income Security Act (“ERISA”).  The more than 5,000 class members alleged that they were not paid for hours worked over 40 hours per week, including: (1) work during uncompensated meal breaks; (2) work before and after their shifts; and (3) training after regular work hours.

The parties arrived at the settlement after extensive mediation.  The $2.2 million settlement was based on an analysis of payroll data, including the actual hours and pay rates for each employee, the employees’ statements about their uncompensated hours, and their claim for attorneys’ fees.

With that background, here is the “scorecard” in this settlement:

Plaintiffs’ Attorneys:  + $733,000
Each Plaintiff (average):  + $250 (approx.)
Defendant Hospital:  – $2,200,000

The plaintiffs’ attorneys will walk away with one-third of the settlement, an enormous pay day for them of more than $733,000.  In contrast, some individual class members will receive as little as $25!

A more detailed discussion of this case will be published soon as an E-Alert.  Stay tuned!

Mass. Fur Company Agrees To Pay Almost One Million Dollars In Damages And Penalties For Wage Violations

[October 18, 2013]  Pursuant to a consent judgment announced by the U.S. Department of Labor (“DOL”) last month, a Boston fur company and its owner will pay almost One Million Dollars to 14 employees to settle wage and hour claims brought by the DOL in the federal court in Massachusetts.

While the employer has not admitted any liability, the DOL alleged that the workers:  (1) were required to work 10 hours per day, six days per week at the animal hide business; (2) were paid a daily wage that was far below the minimum wage; and (3) were not paid overtime.

The DOL further alleged that the employer retaliated against several workers for cooperating with the DOL’s investigation.

The federal Fair Labor Standards Act (“FLSA”) authorizes the DOL to gather data concerning wages, hours, and other employment practices; enter an employer’s premises and inspect its records; and question employees to determine whether any person has violated any provision of the FLSA.

We recommend that any employer facing a DOL investigation work closely with legal counsel to properly narrow the scope of the investigation and to comply appropriately with the DOL’s requests.

Status Of Federal Agencies And Courts During Government Shutdown

[October 4, 2013]  Many employers may have questions about the operational status of federal agencies and courts during the ongoing shutdown of the federal government.  Some current information of interest to employers is summarized below:

  • Department of Labor (“DOL”):  Most DOL offices, including the Employment and Training Administration (“ETA”) and the Wage and Hour Division, have suspended their operations.  Therefore, such matters as Labor Condition Applications, Prevailing Wage Determinations, Applications for Temporary Employment Certification, and Applications for Permanent Employment Certification will not be accepted or processed during the shutdown.  However, the Office of Workers’ Compensation Programs will continue to process certain types of benefits claims.
  • Equal Employment Opportunity Commission (“EEOC”):  The EEOC will continue to accept and process charges but will not investigate cases during the shutdown.  All mediations and federal sector hearings will be cancelled, and FOIA requests will not be processed.  Also, EEOC staff will not be available to answer questions or provide assistance to the public.
  • Federal Courts:  Currently, the federal courts remain open.  However, the federal judiciary will reassess the situation if the shutdown continues through October 15, 2013.
  • National Labor Relations Board (“NLRB”):  As all but a handful of the NLRB’s employees have been furloughed due to the shutdown, the agency’s regional offices have been closed, and the NLRB is not processing unfair labor practice (“ULP”) or representation cases.  Most filing deadlines will be tolled while the shutdown continues.  However, since the NLRB may not have the authority to extend the statutory six-month limitations period for filing ULP charges, the agency has recommended that ULP charges be faxed to regional offices if necessary to ensure compliance with the six-month filing requirement.
  • U.S. Citizenship and Immigration Services (“USCIS”):  Because USCIS is funded by user fees (rather than appropriations), the agency is continuing to operate.  However, the E-Verify employment eligibility confirmation system is unavailable during the shutdown.  Employers enrolled in the E-Verify program will be given additional time to create E-Verify records and resolve Tentative Non-Confirmations once the system becomes operational again.

Employers should be aware that this information may be subject to change, particularly if the shutdown is prolonged.  Thus, employers should closely monitor further developments in these areas.

Reminder: Obamacare Exchange Notices Due To Employees October 1

[September 16, 2013]  Employers must provide Obamacare “exchange notices” to current employees by October 1, 2013, and to new employees at the time of hire.  (For 2014, this means within 14 days of the start date.)  The DOL has made available on its website two versions of model notices:  one for employers who offer health coverage and one for employers who do not.

Although the employer mandate of the Affordable Care Act (“ACA”) has been postponed until 2015, the requirement to notify employees of health care coverage available on insurance exchanges by October 1, 2013, remains in effect.  The requirement applies to all employers who are covered by the Fair Labor Standards Act.

The exchanges are scheduled to begin accepting applications on October 1, 2013, for coverage that will begin on January 1, 2014.  However, recent polls have found that many Americans, including those who are currently uninsured and, thus, will face a penalty under the ACA as of January 1, 2014, do not understand the law’s requirements.

Thus, the Obama Administration has increased its efforts to promote the law, including enlisting former President Bill Clinton for a recent speech detailing the intricacies of the ACA.  The White House has also recruited athletes and entertainers to help spread the word about the upcoming enrollment period.

The required notice to employees must be provided in writing and in a manner calculated to be understood by the average employee.  It may be provided electronically if the DOL’s electronic disclosure safe harbor requirements are met.

Employers must provide a notice to every employee regardless of plan enrollment status or part-time or full-time status.  Employers need not provide a separate notice to the employees’ dependents.

Hacked! Best Practices For Preventing And Responding To Data Breaches At Your School

[September 11, 2013]  “…Data breaches can have a significant impact on an independent school’s relationship with its students, alums, and their families, as well as with faculty, staff, and other employees.  Those affected may lose trust in the institution, given its apparent inability to safeguard sensitive, personal information.  While the appropriate response to a data breach depends on the facts of the situation and applicable state and federal laws, below is a broad, step-by-step approach to help your school prepare for and respond to a data breach…”

To read the full article, which appeared in the September/October 2013 issue of NBOA’s Net Assets, please click here.

Heads Up!

[August 28, 2013]  It seems that a new season of Head-of-School turn-over is upon independent schools: after several quiet years (post-Great Recession), more Heads of School are retiring.  In turn, this is leading to a rippling of job changes throughout independent schools across the country.

All of this activity – Heads retiring, Heads leaving schools, Heads starting at new schools – serves as a reminder of the importance for schools (and their Boards) to handle these transitions effectively (i.e., “dot the i’s and cross the t’s”).  With this in mind, we offer the following thoughts to help guide schools through the transition process, from departure through the search and to hiring a replacement.

  • The departure of a long-standing Head of School affects each school community in unique ways.  It is, therefore, important that independent schools take stock of the departing Head’s achievements and conduct a self-reflective and thorough assessment of the school’s needs as it embarks on the search for a new Head of School.
  • The school should establish a timeline for its search process.  For example, consider whether it makes sense for a new Head to overlap with the departing Head:  will that ease or complicate the transition?
  • Next, the school’s Board should convene a search committee, which should engage a professional search firm to assist the school in identifying suitable candidates.  Carefully negotiate the search firm’s contract to fully protect the school’s interests.  A critical part of the search process will be working with the search firm to create the best possible profile of the school.  What are the school’s short, medium and long range goals for enrollment, fundraising, and capital projects? What about the school’s culture is unique? An accurate profile of the school will help to ensure that candidates for the school’s most important job actually understand the school’s strengths and challenges, and where the potential Head can envision making a positive impact.
  • The interviewing of potential candidates provides an important opportunity to assess personality, interpersonal skills and fit.  Therefore, Board members should be well prepared (perhaps formally trained) to ask the right questions, avoid inappropriate questions, and assess candidates’ responses.
  • Once a candidate is selected, we recommend executing a short (one or two page) “term sheet” prior to drafting a contract.  Once both sides agree on key terms and numbers, the remaining contract terms will usually fall more easily into place.
  • We recommend conducting a “safe harbor” analysis (under Internal Revenue Service (IRS) regulations) to ensure that the school offers what the IRS would consider to be reasonable compensation.  By reviewing compensation arrangements for the initial contract, the school will avoid the potential of having to decrease compensation upon contract renewal, if the original package was too “rich” as compared to the compensation paid by similar organizations.
  • Finally, some independent schools provide a modest financial package to a departing Head of School, sometimes as a thank you or a bridge to retirement, or perhaps to help smooth the transition to the next Head of School.  However, unless specifically required by the departing Head’s contract, such additional payment is typically discretionary.  Regardless, we recommend offering any such parting compensation only in exchange for a release of potential claims.

It may have been many years since your school made the transition from one Head to the next.  Given the apparently high number of transitions that seem to be underway, this could be a busy 12-24 months for schools looking for their next Head of School, while the best candidates will likely have many options.  Therefore, schools are well-advised to do some careful planning, and engage experienced professionals who can offer thoughtful guidance, to navigate this transition as smoothly as possible.

Out of Sight, Not Out of Mind: Wage Age Protection Extends to Salesperson Living and Operating Outside Massachusetts

[July 16, 2013]  In light of a recent Massachusetts Appeals Court decision, Massachusetts employers should be mindful of potential liability under the Wage Act for unpaid wages, including sales commissions, to employees who reside outside the Commonwealth and who perform their day-to-day sales activities by traveling and telecommuting from other states.  Failing to recognize that Wage Act protection could extend to these remote employees could prove costly for employers and their officers (who may be individually liable):  the Appeals Court affirmed a judgment for a Florida-based sales director against the CEO of a Massachusetts-based company for more than $300,000.00, plus attorneys’ fees.

In the decision, Dow v. Casale, the Appeals Court applied the choice-of-law doctrine and determined that Massachusetts had the most significant relationship to the parties and their employment relationship, irrespective of where the plaintiff lived and was physically located from day to day.  As a result, the court concluded it was appropriate and reasonable to apply Massachusetts law to plaintiff’s claims and to afford him the remedies provided under the Wage Act.

As a result of the Dow ruling, Massachusetts employers should recognize that the scope of the Wage Act extends beyond the physical boundaries of the Commonwealth.  In today’s telecommuting world where so many employees work from locations other than a company’s Massachusetts headquarters or local offices, it is easy for employers to forget the potential costly ramifications of failing to timely pay these employees wages they are owed.  In light of the Wage Act’s mandatory treble damages and attorneys’ fees provisions, an employer’s “out of sight, out of mind” attitude could prove costly.

Employers should therefore audit their practices concerning out-of-state employees and, if possible, take steps to reduce the employees’ relationships with Massachusetts (e.g., by generating paperwork for out-of-state customers from the remote employee’s location and by instructing the employee to use his or her local contact information on his or her business cards).  Employers may wish to consult employment counsel concerning compliance with the Massachusetts Wage Act for any out-of-state employees.

“Play or Pay” Postponed: Employer Penalties For Violating Obamacare Put Off Until 2015

[July 3, 2013]  The Obama administration has delayed for one year the provision in the Affordable Care Act (“Obamacare”) that requires companies with 50 or more employees to pay a penalty if they fail to provide affordable health insurance to most of their full-time employees.  Employers now have until January 1, 2015, to comply with the so-called “play or pay” provision.

Citing the complexity of corresponding reporting requirements, a representative of the Department of Treasury explained in a statement on July 2, 2013, that the delay is designed to meet two goals:  1) allow the Department of Treasury to consider ways to simplify the new reporting requirements, and 2) provide time “to adapt healthcare coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.”

The deadlines for other provisions of Obamacare, including the individual mandate and the requirement for states to establish health insurance exchanges, remain as scheduled.  Individuals must obtain coverage by January 1, 2014, or pay a tax.  Enrollment in the health exchanges is still scheduled to begin on October 1, 2013.  Employers must provide exchange notices to current employees by that date, as we earlier described here.

While this reprieve is much-needed good news for employers wrestling with Obamacare, employers would be wise to continue planning for the now-delayed requirement.  In fact, the Obama administration “strongly encourages” employers to voluntarily comply with the reporting requirements in 2014 in order to facilitate a smoother transition in 2015.

Are Employers Penalizing Employees For Using Workplace Flexibility Policies?

[June 20, 2013]  A recent New York Times article provides some food for thought concerning whether workplace flexibility policies actually hurt employees instead of helping them.  The article reviews recent research studies examining negative effects on employees’ careers after they take parental leave, work reduced hours, or participate in other programs aimed at providing flexibility.

Is this happening in your workplace?  If so, how should your company handle this phenomenon?  Change the policy?  Change the culture?  Training?  … Or do nothing?

Of course, treating male employees differently as a result of their participation in such flex schedule programs, could result in a whole host of legal claims and employee relation problems, too.

If the attached article gets you thinking about your leave policies, please feel free to call us to discuss.

Obamacare Exchange Notices Due October 1 Per IRS Guidance

[May 22, 2013]  Employers must provide Obamacare “exchange notices” to current employees by October 1, 2013, and to new employees “at the time of hiring.”  (For 2014, this means within 14 days of the start date.)

Specifically, the IRS has finally provided temporary guidance to employers about their obligation, pursuant to the Affordable Care Act (“ACA”), to notify employees of health care coverage available on insurance exchanges.  The requirement applies to all employers who are covered by the Fair Labor Standards Act.

The DOL has made available two versions of model notices: one for employers who offer health coverage, and one for employers who do not.

The notice must be provided in writing and in a manner calculated to be understood by the average employee.  It may be provided electronically if the DOL’s electronic disclosure safe harbor requirements are met.
Employers must provide a notice to every employee regardless of plan enrollment status or part-time or full-time status.

Employers need not provide a separate notice to the employees’ dependents.

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

[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!)

Schwartz Hannum Provides Pro Bono Services To Back Bay Businesses

[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.

Social Media and the NLRB

[March 29, 2013]  The Firm recently published an article detailing various employer social media policies that the National Labor Relations Board (“NLRB”) is likely to view as violating employees’ rights under federal labor law.  (Click here to read the article.)  Employers should be aware that a social media policy can be found unlawful even if the employer is not unionized, and even if no employee has ever been disciplined for violating the policy.

The New York Times recently featured a news story on this same topic.  The upshot of the NLRB’s recent activity in this area is that employers should review their social media policies very carefully, in consultation with labor counsel, and revise them as necessary to minimize the risk of NLRB challenges.

Will Hannum Weighs In On How To Draw The Line Between Tough Management And Harassment

[November 8, 2012] William E. Hannum III was featured in Dawn Lomer’s November i-Sight blog article on “How To Draw the Line Between Tough Management and Harassment.”  Click here to read Will’s recommendations for determining the difference between harsh management practices and harassing behavior, and view some examples of negative impacts of risky management styles.

Bring Your Own Device Programs

[September 27, 2012] For years, faculty members and school administrators have largely discouraged students from using their own personal electronic devices in the classroom. However, increasingly students and faculty members at independent schools are bringing their own electronic devices to campus and using them in the classroom. This month’s Net Assets Magazine highlights some of the legal issues that schools should consider when adopting Bring Your Own Device programs. Comments by Schwartz Hannum attorneys are featured in the Net Assets article available here.  Sara Goldsmith Schwartz, the President and Managing Partner of the Firm, will also be presenting on this topic at the Fall Business Conference of the Association of Independent Schools in New England.

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If you need any assistance with Bring Your Own Device policies or programs, please do not hesitate to contact any of the members of the Firm’s Education Practice Group.

Note: This article was originally published in the September-October issue of Net Assets magazine, published by NBOA.

Will Hannum Weighs In On The Five Questions To Consider Before Terminating A Bad Employee

[September 19, 2012] William E. Hannum III was featured in Dawn Lomer’s September i-Sight blog article on “5 Questions to Consider Before Terminating a Bad Employee.” Click here to read Will’s suggestions on terminating employees over the age of 40, those who are disabled, those who may have made inappropriate comments to fellow employees and those who may be in a protected class.

Truth In Lending Act Obligations May Apply To Independent Schools

[August 22, 2012] Many independent schools are covered by the Truth in Lending Act (“TILA”).  Because we have seen an uptick in TILA compliance issues, we have prepared a white paper to outline TILA issues for independent schools.  In sum, we recommend that all independent schools review their tuition payment plans (and other transactions in which schools extend credit to families or employees) to determine whether the transactions are covered by TILA, and if so, comply with the disclosure requirements under TILA.

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New Massachusetts Criminal Background Check Requirements To Take Effect On May 4, 2012

[May 3, 2012]  Beginning May 4, 2012, new requirements will go into effect for employers that conduct criminal background checks on applicants – requirements that were enacted as part of the Massachusetts Criminal Offender Record Information Reform Law of 2010 (the “CORI Reform Law”).

The major provisions of the CORI Reform Law that take effect on May 4 require certain employers to follow certain procedural safeguards and have a CORI policy, as summarized below.  Currently, there is no regulatory guidance on these requirements, but the Department of Criminal Justice Information Services (“DCJIS”) in Massachusetts is expected to issue final regulations in the near future detailing and implementing these requirements.

Note: A separate portion of the Massachusetts CORI Reform Law, prohibiting most employers from including questions about criminal history on their initial job application forms, previously went into effect in November 2010.  Read More

Is Your Fundraising Raffle Legal?

For many independent schools and other non-profit organizations and charitable causes, raffles are a common and fun way to raise funds.  However, in most states, raffles are considered a form of gambling or gaming and, as such, are subject to state regulation.

Each non-profit organization should determine whether a raffle is permitted in its state and, if so, whether state-specific legal requirements apply.  Failure to do so could trigger an investigation by the state Attorney General (or other legal authorities) and expose the organization to a burdensome audit.  Read more

The Race Is On – Plan Now For Fiscal Year 2013 H-1B Visas

Beginning April 2, 2012, employers may file petitions for H-1B visas on behalf of foreign nationals who are employed in specialty occupations that require the application of highly specialized knowledge and completion of a Bachelor’s degree or higher in the specialty occupation, for start work dates of October 1, 2012 (the beginning of fiscal year 2013) (“FY2013”), or later.  The annual cap on H-1B visas is 65,000 (6,800 additional H-1B visas are reserved for citizens of Chile and Singapore pursuant to treaty obligations, for a total cap of 65,000 visas annually).  Notably, the annual visa cap does not apply to H-1B visa transfers or extensions, or to foreign nationals working for educational or non-profit research organizations that are exempt from the cap.  Read more

Lawsuits Challenging Status Of Unpaid Interns: On The Rise

The prospect of hiring volunteer interns is alluring.  But employers are learning the hard way that interns cannot be employed as volunteers, except in narrow circumstances.  Two recent lawsuits illustrate this trend—and underscore the importance of treading carefully when considering “hiring” anyone on a volunteer basis.  Read more.

Data Security Alert! March 1 Deadline For Service Contracts To Comply With Massachusetts Data Security Law

Entities covered by the Massachusetts Data Security Law (including employers outside of Massachusetts) must ensure that all third-party service provider contracts are fully compliant with the law by March 1, 2012, when a two-year grace period for pre-existing third-party service provider contracts will expire.  Thus, by March 1, all such contracts must include a provision requiring the service provider to satisfy the requirements of the law, regardless of the contract’s execution date.  Read more.

Trial Strategy Practical Tip: Errata Sheets Face Scrutiny

The Massachusetts Supreme Judicial Court (“SJC”) has established important new guidelines on the use of deposition “errata sheets,” which witnesses use to make corrections to their deposition testimony.  Most significantly, witnesses who make substantive changes to their deposition testimony may be required to justify those changes in a reopened deposition or at trial – and their lawyers may be subject to sanctions, including disqualification, depending on the nature and extent of the changes.  This case is a valuable reminder that witnesses must prepare thoroughly for all depositions.  Read more.

2012 Is Here! Time To Review And Update Your Employment Policies

This year, it is especially important for employers to review their employee handbooks to ensure that they are both legally compliant and up to date with current practices.  Numerous changes in federal and state employment laws have taken place over the past year and are slated to become effective in 2012, requiring employers to act now.  Read more.

Effective Harassment Policies And Practices Can Be An Employer’s Best Defense

With all of the cautionary tales about what can happen when employers don’t comply with employment laws, it is nice to hear about an employer whose compliance was rewarded. In Wilson v. Moulison North Corp., a recent opinion by the United States Court of Appeals for the First Circuit, the Court affirmed summary judgment for an employer that took appropriate precautions to prevent harassment in the workplace. In Wilson, the Court found that the employer had an appropriate policy against harassment, followed its policy, and as such, could not be found liable for the harassment of an employee.  Read more.