What was the Pennsylvania Legislature Thinking When it Modified the Accountability Provisions for Teachers under the Public School Code?

Under the guise of improving teacher accountability, the Pennsylvania Legislature recently engaged in a sweeping overhaul of the evaluation process for professional employees (teachers) under the Public School Code. However, in making some of these changes, however well-motivated the State Legislature may have been in terms of improving teacher accountability, the State Legislature has actually made it far more difficult to terminate professional employees who are not performing up to standards in the Commonwealth of Pennsylvania.

First, the Pennsylvania Legislature included the following language modifying the Public School Code:

No employee shall be dismissed under Section 1122 unless the employee has been provided a completed rating tool provided for under this section, which includes a description based upon classroom observations of deficiencies in practice supported by detailed anecdotal records that justify the unsatisfactory rating.

The translation of this language is that no teacher or temporary professional employee can be dismissed unless they are rated unsatisfactory on the rating tool. At first blush, that might seem to be appropriate. However, if, for example, a teacher were to have engaged in inappropriate sexual misconduct with a student, which would otherwise be immorality under the School Code, the district would have to rate a teacher first as unsatisfactory before they dismiss a teacher. Even though this is patently absurd, the legislation will definitely need to be amended to change this provision.

Second, the legislation also provides for a new rating instrument and methodology. Beginning in the 2013-2014 school year, the evaluation of professional employees and temporary professional employees needs to take into account the following:

I. Classroom observation and practice models that are related to student achievement in each of the following areas:

(a) Planning and preparation

(b) Classroom environment

(c) Instruction

(d) Professional responsibilities

II. Student performance, which shall comprise 50% of the overall rating of the professional employee or temporary professional employee serving as a classroom teacher and shall be based on multiple measures of student achievement. The 50% shall be comprised of the following:

(a) 15% building level data, including but not limited to all of the following:

I. Student performance on assessments

II. Value-added assessment system data made available by the Department under Section 221

III. Graduation rate as reported to the Department under Section 222

IV. Promotion rate

V. Attendance rate as reported to the Department under Section 2512

VI. Advance placement course participation

VII. Scholastic aptitude tests and preliminary scholastic aptitude tests

(b) 15% of the teacher’s specific data, including but not limited to student achievement attributable to a specific teacher as measured by all of the following:

I. Student performance on assessments

II. Value-added assessment system data made available by the Department under Section 221

III. Progress in meeting the goals of the student individualized education plans required under the Individuals with Disabilities Education Act.

IV. Locally developed school district rubrics

c) 20% elective data, including measures of student achievement that are locally developed and selected by the school district from a list approved by the Department and published in The Pennsylvania Bulletin by June 30 of each year including, but not limited to, the following:

I. District-designed measures and examinations

II. Nationally recognized standardized tests

III. Industry certification examinations

IV. Student projects pursuant to local requirements.

V. Student portfolios pursuant to local requirements.

On their face, these objective methodologies may seem to be a good idea and if they were properly implemented, they very well could be a good idea. However, the State Legislature and/or the Governor’s Office that proposed this language have very little understanding of the evaluative process for professional employees and how labor arbitrators will interpret this language.

Third, as the result of the imposition of this language, should a district in the future seek to terminate a professional or temporary professional employee, one can expect that the teachers’ unions representing these employees will argue that a teacher cannot be held accountable on the basis of performance for all of the students in their classroom because:

  • The teacher does not have a choice in which students are assigned to them.
  • The teacher may have a disproportionate number of students who are exceptional students from a special education perspective.
  • How could a teacher be held responsible for the problems that may have been created as the result of a prior professional employee or temporary professional employee who did not perform adequately with the student (poor teaching performance usually has at least a four year residual impact on students)?
  • The teacher cannot be held responsible for the socioeconomic status of a student, which has the greatest predicative factor on student performance.

Fourth, the proposed evaluation methodology further does not take into account how to evaluate teachers where performance results do not adequately measure the teacher’s performance. Examples of this would be the rating of music teachers, art teachers, guidance counselors, physical education teachers, vocational-technical school teachers, intermediate unit teachers, and the like.

Fifth, I would expect that now the termination of a professional employee will become a statistical battle between districts and teachers. Though it is clear that the current system is not optimal and is much more subjectively based, I conclude that the proposed legislation will actually make it more difficult to terminate professional and temporary professional employees than ever before. Accordingly, “what was our State Legislature thinking?”

Finally, it appears as if the only effective methodology to terminate professional and temporary professional employees based upon current amendments to the law is to rely upon a teacher’s criminal history information. If a teacher has a problem in his/her criminal background, that appears to be the most efficient way to terminate a professional or temporary professional employee. Otherwise, school administrators are now going to be mired in statistical paperwork prior to terminating any teacher.

I believe that most labor arbitrators will not support the statistical methodologies in place for a teacher’s discharge. The Legislature’s handiwork has now created a situation that will likely cause districts to have even more difficulty in terminating non-performing teachers. If I were in a position to grade, the Legislature would get an “F” for this effort.

 

In PA, a school employee fired for incompetence can still get unemployment

It is not new law, but a recent case reminds us that just because a teacher is incompetent as a teacher, once that teacher is fired he or she can still get unemployement compensation. 

What was kind of unfortunate is that it looks like the school administration in that recent case realized that an employee would be eligible for unemployment if fired for incompetence (probably when it got around to consulting with its counsel) but that realization only occurred after firing her.  So the court decided that when the administration told the employee "You are being terminated for being incompetent in you[r] job," that they pretty much meant what they said.

This despite the fact that the school also had evidence that the employee had also been terminated for wilfull refusal to accomplish assigned tasks.

Lesson to be learned?  School administrations would be best served to consult with counsel before taking steps to terminate employees.

The recent case -- which really does not break any new ground -- is the Hamburg Area School District v. UCRB and can be found at here.

Pennsylvania Schools and What Good are the Criminal Background Checks

I was working on something or other yesterday when I got a call from a news reporter in the area.  No, I did not get quoted, and it was not to get my life story, but his questions about the amendments to the School Code's §1-111 got me thinking about the uselessness of the new amendment.  If any of the legislation's sponsors are reading this, I am sorry.

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Examining the Public Policy exception to the Essence Test in employment matters

Today, the PA Commonwealth Court decided a case that further interpreted and gave a fairly concrete standard for deciding whether a Pennsylvania court may over-rule an employment arbitration award based on public policy.

The process the Commonwealth Court stated should be followed is this:

  1. Determine the conduct leading to the discipline;
  2. See if that conduct implicates a "well defined, [and] dominant" public policy.  This policy must be based on "laws and legal precedents and not from general considerations of supposed public interest;"
  3. Figure out if the arbitrator's award "poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator."

Because of the particular circumstances of this case, the Commonwealth Court found the arbitrator was within his authority when he reinstated the employee even after finding the employee had stolen money from a member of the public.

 

The case is City of Bradford v. Teamsters Local Union No. 110, 1804 C.D. 2009, and can be found here.

 UPDATE:

As an added note, if you wish to read about the original case that changed the standard to the one the Commonwealth Court applied here, you can read about it in a prior post from this blog here.

One more way that employing a teacher is different than employing a police officer

In a somewhat surprising case dealing with Worker's Compensation (yes, even public school districts have to deal with WC), Pennsylvania's Commonwealth Court rejected the University of Pennsylvania's claim for termination of benefits to an injured employee with a later criminal conviction.  Penn's claim was that one of its police officers [1] was injured, went out on WC, then both recovered and was convicted of Simple Assault and Endangering Children. 

Finding first that the police officer/Claimant was still unable to work because he had not recovered from his injuries, the court made the startling statement that Claimant's "certification status is irrelevant because Claimant would not be able to work as a campus police officer regardless of whether or not he was certified."

Softening the blow a bit, the court went on to fashion this issue into a "sufficiency of evidence" argument. That meant that since Penn had the burden to prove any reason to stop compensation, that it should have proved that the employee's certification was actually revoked.

But this is an education blog, and issues surrounding police officer certifications are rarer for us than teacher certification issues. Luckily for us (but not the teacher), the criminal conviction of a teacher out on Worker's Comp would likely prove an intervening/superceding cause in a way that might not have applied in this case.

One way that highlights the difference between a private university and a public school is the applicability of §5-527 of the School Code.  That section requires various types of public and private schools (but which excludes Penn) to terminate an employee who is convicted of particular drug offenses or offenses covered in §1-111. Endangering the Welfare of a Child (18 Pa.C.S. §4304) is one of those listed offenses requiring termination.

Beyond the above, there are certainly other ways for a school to deal with this issue, both statutory and contractual, but it is interesting to note how the law differs for different types of schools.

The case is University of Pennsylvania v. Workers Compensation Appeals Board, 2240 C.D. 2010, and can be accessed here.

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[1]An even bigger surprise to me than the decision itself was that this employee was both a campus police and a S.W.A.T. team officer for Penn. I don't know about anyone else, but I find it rather disconcerting that Penn has a SWAT team.

Fox's Mark Fitzgerald Provides Testimony to Pa. House Education Committee Regarding Furloughs of School District Employees

Mark Fitzgerald, a member of Fox Rothschild's Education Law Group, provided testimony regarding economic furloughs for school district employees on March 3, 2011. Here is an excerpt of his testimony:

 

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Short Term Depression is not a Disability

In a recent case out of the Third Circuit Court of Appeals, Seibert v. Lutron Electronics, the court held that depression that was not permanent and caused by specific non-recurring events did not qualify as a disability under the ADA.  In Seibert, the plaintiff-employee suffered from depression that was caused by "her fiance's alcohol consumption, the stress of planning her wedding, financial problems, and her grandfather's illness."  This depression lead to the employee taking a leave of absence from April 2005 to October of 2005.  However, upon returning to work the employee continued to have attendance issues, which the court found were not attributable to depression, and the employer offered the employee the option to either resign her position or be terminated, with the employee choosing to resign.

The court explained that "[t]ransitory, temporary or impermanent impairments" do not meet the definition of an impairment that substantially limits a major life activity under the ADA.  In this case, accordingly, the court found that the depression was temporary.  The ADA itself defines transitory as lasting less than 6 months. 

The case is helpful for school districts in the ADA and Section 504 employment context in that it shows that short term depression caused by a specific event is not a disability.  Likewise, it is helpful under Section 504, which also applies to most school district, because Section 504 borrows the definition of disability from ADA.  Moreover, while perhaps a little less clear, this could also have implications for students in that students who claim to be disabled under Section 504 and/or IDEA due to depression might not so qualify if the depression is short term in nature and attributable to a specific event. 

We will not fight them in the courts, we will not fight them at the PLRB, we ....

While in other contexts December 7 is "a day that will live in infamy," and was a day that marked the beginning of America's concerted war efforts, the PA Commonwealth Court published a case yesterday saying instead "we are not involved."

The case involved the police union complaining that the Commonwealth of PA had hired people outside the union to do union work.  The Commonwealth claimed that what it did was permitted under a provision of their collective bargaining agreement (CBA).  The union interpreted the same contract provision differently.  In the end, the court invoked the well-established "contractual privilege" theory, saying if the union wanted to fight about it, the union would have to challenge this with an arbitrator.

The court pointed out that

the [PLRB] exists to remedy violations of statute ... and not violations of contract. Where a breach of contract is alleged, it should be resolved by an arbitrator using the grievance procedure set forth in the parties’ collective bargaining agreement.

(internal quotation marks and citations omitted).

This is not a new theory and I do not believe that the case really breaks any new ground.  At the same time, what is pointed out by the dissent (so clearly the three judges did not all agree on the outcome) was that interpretation of this same contract provision had already been the subject of a prior arbitration decision between the parties in a separate but markedly similar situation.  Yet even with that history the majority still told the union that its only recourse was with a new arbitration.

Shall we analogize this to Sgt. Schultz ("I see noth-ing ....")?

The case is Capitol Police Lodge No. 85 v. PLRB, No. 2012 C.D. 2009 (Pa. Cmwlth. Ct.) and can be found here.

The Dangers of August 31

 

August 31st and the waning days of summer should be a time of renewal, a fresh school year with new expectations, students bright eyed and ready to learn. The last day of the eighth month can also represent the final day of a worn out, old, and beat up Collective Bargaining Agreement. Teachers, Administrators, and School Board Members are ready for a Contract with a face lift.

 

Unfortunately, the economics of our time have brought teacher negotiations in many corners of the Commonwealth to a standstill. Taxpayers unwilling to part with depleted funding, and teacher unions in denial that we’re going through the greatest economic calamity since the Great Depression.

 

The result: the old Contracts overstay their welcome, way past their expiration date.

 

What happens, then, if teachers begin working the days leading up to August 31st in preparation for the 2010-2011 school year? Teachers couldn’t possibly be entitled to a raise, just because they showed up for work, right? After all, the contract expired, so they would just be entitled to a maintenance of current wages?

 

In the wildly erratic world of Pennsylvania teacher contract negotiations, it should come as no surprise that the end date of a Collective Bargaining Agreement could mean the difference between potentially saving millions of taxpayer dollars while negotiating a successor Contract versus paying out raises across the board while losing complete bargaining leverage in the process. We give you the dangers of an August 31st expiration date for your Collective Bargaining Agreement.

 

What’s more maddening is the unsettling guidance from Pennsylvania Arbitrators on this very issue.

 

In Ringgold School District v. Ringgold Education Association (2005), Arbitrator Talarico opined that the Agreement clearly showed the parties bargained for a separate salary schedule for each year and stated:  "More importantly, salary increases beyond five school years specifically covered by the expired Contract were neither bargained for nor contemplated by the parties."  Therefore, the arbitrator held that the employees were not entitled to vertical salary step movement on the Collective Bargaining Agreement.

 

On the other hand, the more recent Northwest Area Education Association v. Northwest Area School District decision from Arbitrator John Skonier explicitly holds that if a school district starts a teacher's work year prior to the expiration of the prior Contract, step and column movement would be triggered.  This is the opposite of the Ringgold decision. Arbitrator Skonier’s decision was later affirmed by the Pennsylvania Commonwealth Court.

 

If August 31st is the terminal day of your contract you may be facing a salary increase and not even know it.

A LESSON ON THE ADA INTERACTIVE PROCESS

A recent case out of the Tenth Circuit Court of Appeals is instructive in the need to engage in the interactive process under the ADA when an employee claims that a disability will impact his or her ability to do the job.

In the case of Lowe v. Independent School District No. 1 of Logan County, Oklahoma, an employee had a post-polio condition and was advised by her doctor to avoid standing and walking for long periods of time.  The employee was employed as a counselor and required no accommodations for her disability.  However, she was re-assigned to a position as a classroom teacher and shared concerns with her employer that she may require accommodations for this new position.  The employee was told that no accommodations would be made and she quite her job.

The Court found that this failure to engage in any interactive process on the part of the School District demonstrated that the employer may have violated the ADA by failing to make a good faith effort to determine if reasonable accommodations could be made to allow the employee to perform the job.  The case is instructive of the need to engage in the interactive process and that the failure to do so could in and of itself could be a possible violation of the ADA. 

DOES AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 APPLY RETROACTIVELY?

 

In 2008, President Bush signed the Americans with Disabilities Act Amendments Act (“ADAAA”), which expanded the protections of the ADA to include those who have an actual or perceived physical or mental impairment “whether or not the impairment limits or is perceived to limit a major life activity.” In passing this bill, Congress expressly rejected several Supreme Court decisions that took a more narrow view of the ADA. The question that remains is what standard applies to cases of alleged discrimination that occurred prior to the ADAAA?

 

It appears that several courts have looked at this issue and reached different conclusions. In Rohr v. Salt River Project Agricultural Improvement & Power District, out of the Ninth Circuit Court of Appeals, while not addressing the issue directly, the court noted that “the ADAAA sheds light on Congress’ original intent when it enacted the ADA” in 1990 and suggests it may be appropriate to read the amendments to allow for protection to a broader class of individuals, even in cases where the alleged discrimination occurred prior to the enactment of the ADAAA. However, the United States District Court for the Northern District of Indiana reached a different conclusion in the matter of Brooks v. Kirby Risk Corp. and found that the more limited standard endorsed by the Supreme Court applies to claims prior to the ADAAA, which went into effect in January of 2009, should be applied to these types of cases. The Brooks court notes that the Seventh, Fifth, Sixth and D.C. Circuit Court of Appeals have taken the view that the broader protections of the ADAAA only apply to actions of alleged discrimination after its enactment, while the Ninth, Tenth and Eleventh Circuits have declined to decide the issue, but at least implied they could by applied to actions prior to the effective date of the ADAAA.

 

Interestingly, if the Circuit Courts continue to split on this issue, it may be the Supreme Court, whose analysis of the ADA was expressly overturned by the ADAAA, that may get the last word on this issue. Unless, of course, Congress decides that the Supreme Court gets it wrong and decides to amend again.   

ADA AND SECTION 504 ANTI-RETALIATION PROTECTIONS NOT LIMITED TO INDIVIDUALS WHO ARE DISABLED

The Ninth Circuit Court of Appeals has found in the case of Barker v. Riverside County Office of Education (October 23, 2009) that the anti-retaliation provisions of Section 504 of the Rehabilitation Act of 1973 and the ADA apply even if the person who claims to have been retaliated against is not themselves disabled. In Barker, a special education teacher voiced concerns that her employer’s special education program was not in compliance with federal and state law and then, along with a coworker, filed a complaint on this alleged non-compliance with the U.S. Department of Education’s Office for Civil Rights. In response to this complaint, according to the employee, the school district retaliated by reducing her case load, intimidating her, excluding her from meetings and other activities that, according to the employee, led to an intolerable work environment.

The employee filed suit claiming she had been retaliated against for filing the complaint and voicing concerns about the alleged non-compliance of the district’s special education program. The court was asked to determine whether this teacher, who herself was not disabled, was afforded the protections of the anti-retaliation provisions of the two statutes. Looking at both statutes the court found that both protected "any person" who was retaliated against. The court further noted its belief that Congress intended to protect other individuals in recognition of the fact that disabled individuals may need assistance in vindicating their rights.

The lesson of Barker is clear. If school districts or other educational entities have employees who complaint internally or to outside agencies about the treatment provided to disabled students or employees, they must be treated the same as other employees and any appearance of retaliation for the complaints must be avoided.

CONGRESS TAKES AIM AT SUPREME COURT'S RULING ON ADEA

As I predicted back in June, when the Supreme Court issued it ruling in Gross v. FBL Financial Services, Inc., Congress has taken aim at trying to reverse the Court's decision legislatively.  In June, the Supreme Court's decision in Gross did away with burden shifting under the ADEA, in which once the employee established that age was at least part of the reason for the adverse employment decision, the burden shifted to the employer to show it was not.  In Gross, the Court ruled the burden is upon the employee the entire case to show the adverse action was taken against him or her as a result of their age.  In response last week, The Protecting Older Workers Against Discrimination Act was introduced in Congress.  The bill, if passed, would essentially overrule the decision in Gross by requiring employers, once an employee establishes that age was a factor in an adverse employment decision, to show it complied with the law.  There will be further posts on this bill as it makes its way through Congress.     

SENATE BILL 1007 ATTEMPTS TO LIMIT THE POWER OF "LAME DUCK" SCHOOLS BOARDS TO APPOINT OR DISMISS A SUPERINTENDENT

Currently pending before the Pennsylvania State Senate is Bill Number 1007, which would prevent a school board from appointing or dismissing a superintendent where three or more of its members have lost their bids to remain on the board in the primary elections. The nature of the issue is that school board members run for re-election in the primaries in May and, even if they lose in the primary, continue to sit on the board through the regular election in November and until the new board is installed in December. In the past, the board, including the members who have been “voted off”, could take actions to either appoint or dismiss a superintendent during that time-frame and Senate Bill 1007 attempts to limit the ability to do so.  

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CHANGES IN THE APPLICATION OF ADEA HAS IMPLICATIONS FOR SCHOOL DISTRICTS, BUT THOSE CHANGES MIGHT NOT LAST LONG

Next, in matter not directly looking at schools, the Court has changed the analysis in age discrimination cases under the ADEA in Gross v. FBL Financial Services, Inc.  Prior to Gross, as with other discrimination claims, claims under the ADEA were sometimes approached with a burden shifting analysis.  Under this approach once an employee who was subject to an adverse employment action taken established that age was at least part of the reason for the decision, the burden then shifted to the employer to show that the same decision would have been made irrespective of the employee’s age. In Gross the Court rejected that notion and found that the burden is always on the employer to establish that the adverse action was taken against them on the basis of age.

This decision will have an effect on school districts in that in defending against age discrimination cases, the burden will always be on the employee. It is not clear how long this decision will remain in effect as it is possible that Congress may step in and overrule the decision by amending the ADEA, as was done with the Ledbetter case in the area of equal pay.
 

Changes coming for Whistleblower laws?

The House Committee on Education and Labor issued a release addressing the nation's whistleblower laws and a report issued by the Government Accountability Office.  The release, based on the GAO report, states that whistle blowers are not adequately protected from employer retaliation, that resources are inadequate including an inadequate means to track whistle blower complaints, and that the whistle blower regulations are an unworkable patchwork.

The release indicates greater funding for enforcement is likely and that House members plan on reintroducing the Private Sector Whistleblower Protection Streamlining Act (click here for the original announcement relating to this bill).  

Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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Unlawful treatment of employees with caregiving responsibilities

The U.S. Equal Employment Opportunity Commission (“EEOC”) last year issued an enforcement guidance regarding discriminatory conduct toward employees with caregiving responsibilities. The guidance, which is used by EEOC investigators, provides data regarding workplace demographic changes and scenario examples of conduct that might be discriminatory.

Although the status of being a caregiver (whether to a child, adult, or a disabled relation) alone is not a protected classification, discriminatory conduct toward a caregiver can violate anti-discrimination laws when the conduct is related to the caregiver’s otherwise protected status. For example, refusing to grant tenure to a female professor who tool a leave of absence to care for a child. Like this example, a number of the scenarios and underlying case-law citation involve educational institutions. 

The ADA's business necessity defense

The Ninth Circuit Court of Appeals, sitting en banc, in Bates v. United Parcel Service, Inc., re-visited the issue of the business necessity defense and an employer’s safety-based qualification requirements. The court ruled that a government safety rule that does not apply directly to the job at issue but is nonetheless related to the job’s requirements can be considered when determining whether the employer’s safety requirement is proper or discriminatory. 

In this case, UPS had a rule that required all package car drivers to meet a U.S. Department of Transportation (“DOT”) hearing standard. The DOT standard, however, applied only to drivers of trucks over 10,000 pounds gross vehicle weight. UPS applied the rule to all drivers, a rule that was discriminatory on its face.

A class of hearing impaired potential drivers challenged the rule. The trial court found for the plaintiffs, but the Court of Appeals, en banc, reversed and remanded for further proceedings in light of its “clarification” of the law.

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The rules of evidence and employment and school investigations

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

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Glass houses and investigation of employment discrimination

Employee claims employer’s practices and or supervisors are discriminating. Employer investigates the claims and finds, not discrimination, but other facts showing conduct justifying termination. Did the employer retaliate? 

At least in the case below, the U.S. Seventh Circuit Court of Appeals said no. Given that employer investigations are a necessary part of good employment practices, the ruling makes sense. But employers might consider making sure that policies and practices are clear regarding how the employer may use information uncovered in an investigation.

The employees, university police officers, in Nichols v. Southern Illinois University, --- F.3d ---, 2007 WL 4553649 (7th Cir.), claimed retaliation arising from the University’s investigation into their complaints of discrimination.

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No "core function" exception for Pennsylvania public CBA's

As 2007 came to an end, the Pennsylvania Supreme Court also put an end to the "core function" exception to labor arbitration decisions under the state’s Public Employee Relations Act. Westmoreland Inter. Unit No. 7 v. Westmoreland Inter. Unit No. 7 Classroom Ass’t Educ. Sup. Pers. Assoc. (majority opinion). The court did, however, find that a limited public policy exception can apply. But such public policy, said the court, “must be well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” 

The case involves finer legal points about how and to what degree courts are supposed to review labor arbitration decisions. But the facts are interesting, so we can start there.

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No second helpings: limits on ADA claimants collecting disability

Guest blogger, Mark Fitzgerald, writes about the tension between employment disability discrimination claims under the Americans With Disabilities Act (“ADA”) and claims for disability benefits. The legal concept of “estoppel” in such circumstances generally holds that an employee cannot certify to being disabled in order to obtain disability benefits, while claiming in court that she is not disabled and qualified to work. Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.

 In a case that underscores the federal courts’ heightened scrutiny of employment disability discrimination claims following a plaintiff’s successful application for Social Security Disability, the United States District Court for the Middle District of Pennsylvania granted summary judgment for the employer because plaintiff-employee was estopped from raising claims under the ADA  after successfully applying for Social Security Disability benefits.

In an ADA employment discrimination case, a plaintiff must initially be able to show

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