Using Background Information in the Hiring Process
Employment Background Credit Checks As we discussed in our last article, it is not uncommon for employers to look into the background of applicants before deciding whether or not to extend an offer of employment. In addition to conducting criminal background checks, employers may also conduct credit checks and review school records. Below we have included some legal guidelines that employers and employees should be aware of when requesting and obtaining information about the credit history and school records of applicants. Credit Checks: In Massachusetts, a Consumer Reporting Agency may release applicant’s credit reports to employers. However, before requesting a credit report an employer must inform applicants in writing that a credit report will be requested. If information contained in the credit report is the reason for an applicant not to be hired the employer should provide the applicant with the following information: 1. The credit score used to make the adverse hiring decision. 2. Contact information for the Consumer Reporting Agency that issued the credit report. 3. Information about the applicant’s right to obtain one free copy of their credit report each calendar year. 4. Information about the applicant’s right to dispute any inaccurate information contained in the credit report. School Records: The Family Educational Rights & Privacy Act (FERPA) protects access to student records. Schools may disclose “directory information” such as names, basic contact information, and any awards the student may have received, but most student information is confidential. Employers may request that applicants provide a copy of their GPA, course history, or other school-related information, however, unless an employer has the applicant’s written consent they will not be able to access student records on their own. If you have specific questions about information that can be obtained or used in the hiring process, please contact an employment attorney for more information. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Do We Really Need a School Observation?
When I first started representing children with special education needs some eighteen years ago, the concept of sending in a consultant to observe a student during the school day seemed to be an absurd waste of time and money that would never provide any useful information. After all, I reasoned, if the teachers and school staff know that the student is being watched by an outsider, the observer will never be allowed to see what really happens during a regular school day. Boy, was I wrong. After reviewing hundreds of observation reports over the years, I can now attest that observations are a critical piece of our program evaluations and do, in fact, provide valuable information about a student’s school day in virtually every case. This is information that we could never hope to obtain from any other source. “Why do we need an observation?” “Isn’t just an evaluation sufficient?” Parents ask these questions on a regular basis because they share the same doubts that I once had. The answer is that observations provide us with a wealth of information about a student’s educational experience through the lens of an expert who is trained to interpret what happens in your child’s school environment. If you are concerned that your child is struggling socially, a good observer will be able to tell us whether he or she is connecting with peers during the school day. How does your child perform in a large classroom setting? An observer will tell us whether a child is able to thrive in a large group or whether he or she needs a more structured program, more individual attention or a smaller class size. Educational experts who conduct observations focus on such details as delivery of instruction, your child’s social interactions and your child’s peer group to help explain why your child may be having difficulties. Good observations are not limited to the classroom. Oftentimes, for a child who is struggling with anxiety or to make friends, the most important part of an observation may occur in the cafeteria or in gym class where the expert can see for herself whether your child is included and engaging with peers. Who should conduct the observation? Clearly, it should be a qualified professional who has experience in working with children who struggle in the areas of your concern. You, as a parent, cannot conduct an unbiased or trained observation of your own child. Frequently, a neuropsychologist or other specialist who has already evaluated your child is the best person to observe because they know your child’s strengths and weaknesses and best know what to watch for. If your child comes home from school, day after day, exhausted or anxious or discouraged, an observation may be what you need to understand your child’s school day, particularly when, as is often the case, your child is unable to adequately express his or her concerns in a manner that will get the school’s attention. An observation is an important resource not
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CRA Petitions for Children with Disabilities – Are They Proper?
In an important opinion released on February 6, 2018, the Massachusetts Supreme Judicial Court (SJC) made clear that the truancy provisions of the Children Requiring Assistance (CRA) statute must not be applied to children whose failure to attend school is not willful but instead results from medical or mental health issues. For years, I have appeared in court alongside young people who have been summoned to juvenile court through school petitions for truancy when, in fact, their absences directly stemmed from their struggles connected with disabilities such as autism, anxiety, depression or mood disorders or, all too often, from relentless bullying that made them unable to enter the school building. On too many occasions, I have been forced to stand by while these children have been labelled as truants, chastised by school administrators and probation officers and threatened by judges with being removed from their parents’ homes if they did not return to school. In virtually all of these cases I have been struck by the unwillingness of all of these adults to recognize that these children genuinely want to go to school but, due to their disabilities, simply lack the ability to do so. Ordering these children to “just go to school,” without addressing the underlying reason for their inability to attend was doomed to failure and, more often than not, was utterly cruel and served only to exacerbate their anxiety and depression. In the case of Millis Public Schools v. M.P., the SJC was explicit that CRA truancy petitions are improper unless the child’s failure to attend school is purposeful. Importantly, the court made clear that “purposeful” conduct is only reflected by “behavior arising from reasons portending delinquent behavior.” In this case, the SJC found that while the student, a 15-year old girl, wanted to attend school, she was unable due to complications from a bladder condition compounded by autism and other cognitive and emotional disorders. In reversing the findings of a juvenile court judge that the child was truant, the SJC recognized that the child’s failure to attend school was not purposeful but, rather, was the product of her medical and associated mental and emotional impairments. The lesson from this case is that, unless a child’s absence is due to “playing hooky” or conduct beyond the parents’ control, CRA petitions are not an appropriate tool to try to compel a child to attend school. Instead, the SJC pointed out that, where a child with a disability is unable to attend school for reasons related to that disability, the proper venue is not juvenile court but, alternatively, is the Bureau of Special Education Appeals which is best equipped to ensure that the child’s needs are being met. Hopefully, this case will eliminate the all-too-common reaction of school administrators to refer school attendance issues to the juvenile courts which, unfortunately, are ill-equipped to provide services to children with complex medical, mental and emotional disabilities. If you have questions about CRAs or other juvenile court matters involving children with special
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Non-Compete Agreements – A New Era in Massachusetts
A new era for non-compete agreements in Massachusetts will begin on October 1, 2018. Non-compete agreements are defined as, “Agreement[s] between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended[.]” Massachusetts has long recognized and enforced non-compete agreements. In late July, the Massachusetts State Legislature passed a bill that changes the landscape of non-compete agreements in the private sector. While the new law continues to allow employers to utilize non-compete agreements, it will make the agreements more burdensome for employers to utilize. Under the new law, if an employer decides to use non-compete agreements, it must offer either: “Paid garden leave” for the length of the restricted period of employment; or “[O]ther mutually-agreed upon consideration.” Paid Garden Leave “Paid garden leave” amounts to at least 50% of the employee’s highest base salary during the two years prior to the employee’s resignation. For example, if an employee who signed a non-compete agreement after October 1, 2018 and who resigns from work made a highest base salary of $80,000 for the two years prior to leaving her position, the employer would be required to pay that employee $40,000 for the entire amount of time she is restricted from engaging in competing activities. Other Mutually-Agreed Upon Consideration The second option allows employers to provide something other than paid garden leave, so long as the consideration is agreed upon in the non-compete agreement. An example of this could be a lump sum payment made at the time the employee signs the non-compete agreement. Furthermore, the new law specifies that non-compete agreements must be reasonably tailored. Specifically, non-compete agreements (1) cannot contain a non-compete period that exceeds one year, (2) cannot be “broader than necessary” to protect specific business interests of the employer, including confidential information, trade secrets, etc., and (3) must be geographically reasonable in relation to the interests protected by the agreement. The law also addresses an employer’s obligations when it requests an employee to enter a non-compete agreement after employment has begun. Contrary to previous case law, continued employment is no longer considered sufficient consideration. The employer must provide “fair and reasonable” consideration in order for an agreement signed after employment has commenced to be enforceable. If you have questions about non-compete agreements or other employment related issues, please give us a call at (781) 930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Sankey Law Wins Recent BSEA Hearing that Will Impact How Attendance Policies Are Applied to Students with Disabilities Under Section 504
Sankey Law Offices recently prevailed in a hearing at the Massachusetts Bureau of Special Education Appeals (BSEA) that will substantially impact the manner in which schools apply their attendance policies to students with disabilities. In Student v. Bay Path Regional Vocational Technical High School, Hearing Officer Rosa Figueroa found that Bay Path’s Attendance Policy, as applied to the student in this case, was discriminatory and violated his rights under Section 504 of the Rehabilitation Act of 1973. As a result, the hearing officer ordered Bay Path to modify its policy for this particular student. School Attendance Policies and Section 504 of the Rehabilitation Act of 1973 It is well established under Section 504 that a student with a disability is entitled to a reasonable modification of policies, practices, or procedures if such policies, practices and/or procedures discriminate against the student on the basis of his or her disability. Under state law, schools have the authority to create their own local attendance policies for students, but the policies cannot be discriminatory. If the policy is discriminatory, then the school must provide reasonable accommodations and/or modifications to the policy so that the student can have equal access to his or her education similar to the access provided to non-disabled peers. Application of Section 504 in Sankey Law’s Recent Case In this case, the student suffered from intense migraine headaches that frequently prevented him from attending school. The migraines were sporadic and unpredictable. Each time that the Student was absent due to a migraine, he provided a note from his doctor excusing his absence. However, under Bay Path’s Attendance Policy, once a student was absent for 10 full school days or 20 course periods in a school year, even if the absences were medically excused, the student could not earn graduation credits, despite completing all of the work for each course. As a result, the student would be retained the following school year. Bay Path applied this policy to the student knowing that his absences were medically excused and that they clearly resulted from his disability. Bay Path also required the student to attend Saturday School, which otherwise was primarily used as a punitive measure for truant students. In ruling that the school policy was discriminatory, the Hearing Officer wrote: In sum, I find that Student is an individual with a qualifying disability who is entitled to the protections of Section 504 of the Rehabilitation Act of 1973 and that Bay Path, a Federal funds recipient, discriminated against Student in failing to make reasonable modifications to its facially neutral Attendance Policy to accommodate Student’s known medically related disabilities. In doing so, Bay Path violated Section 504 and denied Student equal access to Bay Path’s general education program. The Hearing Officer issued several orders that Bay Path is obligated to implement, including ordering that the student’s medically excused absences due to migraines shall be deemed “exempt from the Attendance Policy” and not counted toward Bath Path’s maximum attendance limit. She also ordered that the
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What Impairments are Considered ‘Disabilities’ for Special Education Purposes in Massachusetts?
Are you wondering whether your child has a disability that may qualify him or her for special education services? The Individuals with Disabilities Education Act (IDEA) – the federal law that governs special education services – specifies what impairments qualify as disabilities for special education purposes. The IDEA recognizes the following impairments as disabilities: Intellectual disabilities, Hearing impairments, including deafness, Speech or language impairments, Visual impairments, including blindness, Serious emotional disturbance, Orthopedic impairments, Autism, Traumatic brain injury, Other health impairments, or Specific learning disabilities. If your child has an impairment that fits within one of the above ten categories, and there are indications that your child may not be making effective progress in the general education setting due that impairment, your child may be eligible for special education and related services. See our article: Who Qualifies for Special Education Services? to learn about the referral and evaluation process. For more information, please contact us at 781-930-3127 Special Education Lawyer | Massachusetts | Boston For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Sankey Law Wins Hearing that Will Impact Attendance Policies for Students with Disabilities
Sankey Law Offices recently prevailed in a hearing at the Massachusetts Bureau of Special Education Appeals (BSEA) that will substantially impact the manner in which schools apply their attendance policies to students with disabilities. In Student v. Bay Path Regional Vocational Technical High School, Hearing Officer Rosa Figueroa found that Bay Path’s Attendance Policy, as applied to the student in this case, was discriminatory and violated his rights under Section 504 of the Rehabilitation Act of 1973. As a result, the hearing officer ordered Bay Path to modify its policy for this particular student. School Attendance Policies and Section 504 of the Rehabilitation Act of 1973 It is well established under Section 504 that a student with a disability is entitled to a reasonable modification of policies, practices, or procedures if such policies, practices and/or procedures discriminate against the student on the basis of his or her disability. Under state law, schools have the authority to create their own local attendance policies for students, but the policies cannot be discriminatory. If the policy is discriminatory, then the school must provide reasonable accommodations and/or modifications to the policy so that the student can have equal access to his or her education similar to the access provided to non-disabled peers. Application of Section 504 in Sankey Law’s Recent Case In this case, the student suffered from intense migraine headaches that frequently prevented him from attending school. The migraines were sporadic and unpredictable. Each time that the Student was absent due to a migraine, he provided a note from his doctor excusing his absence. However, under Bay Path’s Attendance Policy, once a student was absent for 10 full school days or 20 course periods in a school year, even if the absences were medically excused, the student could not earn graduation credits, despite completing all of the work for each course. As a result, the student would be retained the following school year. Bay Path applied this policy to the student knowing that his absences were medically excused and that they clearly resulted from his disability. Bay Path also required the student to attend Saturday School, which otherwise was primarily used as a punitive measure for truant students. In ruling that the school policy was discriminatory, the Hearing Officer wrote: In sum, I find that Student is an individual with a qualifying disability who is entitled to the protections of Section 504 of the Rehabilitation Act of 1973 and that Bay Path, a Federal funds recipient, discriminated against Student in failing to make reasonable modifications to its facially neutral Attendance Policy to accommodate Student’s known medically related disabilities. In doing so, Bay Path violated Section 504 and denied Student equal access to Bay Path’s general education program. The Hearing Officer issued several orders that Bay Path is obligated to implement, including ordering that the student’s medically excused absences due to migraines shall be deemed “exempt from the Attendance Policy” and not counted toward Bath Path’s maximum attendance limit. She also ordered that the
Read MoreAttorney Katie Meinelt joins Sankey Law Offices
Sankey Law Offices, P.C. is happy to announce that Katie Meinelt has recently joined the firm. Katie was previously a partner at Stoneman, Chandler & Miller LLP where she represented public schools and charter schools for over six years. She specializes in all areas of education law including special education, student discipline, Section 504, bullying, policy and handbook development, and all other general school law matters. Katie earned her law degree from Suffolk University Law School in Boston, MA. She also holds a Bachelor of Arts in English and a Master of Arts in English Literature from the University of New Hampshire. Prior to attending law school, Katie was a middle school English teacher. Katie was a cross country, indoor, and outdoor track athlete in college. She has run 13 marathons, including 11 Boston Marathons. She is on the board of the Dana Farber Cancer Institute’s marathon team and actively raises money for Dana Farber and the Jimmy Fund. Katie lives in Winchester with her husband, son and dog. Feel free to contact Katie at kmeinelt@sankeylaw.com or 781-930-3127. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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Massachusetts Passes Law that Increases Workplace Protections for Pregnant Employees
On July 27, 2017, the Massachusetts legislature signed The Pregnant Workers Fairness Act (“PWFA”), which will take effect on April 1, 2018. The PWFA amends Massachusetts’ discrimination statute (MGL c. 151B) to prohibit employers who have six or more employees from discriminating against pregnant employees or employees experiencing a condition related to pregnancy. Prior to the PWFA, pregnancy was not considered a disability and pregnant employees were not a protected class in Massachusetts. Pregnancy related disabilities, such as pre-eclampsia or gestational diabetes, were treated the same as other disabilities and therefore triggered protections under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. However, conditions associated with pregnancy that did not rise to the level of a disability, such as shortness of breath or inability to lift a certain amount of weight, did not trigger legal protections. The broad language of the PWFA – “pregnancy or any condition related to the employee’s pregnancy” – means that employees who, for example, have shortness of breath, a sensitive stomach, back pain, or swollen feet, so long as it is related to their pregnancy, are arguably entitled to request and receive reasonable accommodations at work. The PWFA explicitly lists several reasonable accommodations that employers may have to provide, including but not limited to: Temporary transfer to a less strenuous or hazardous position Light duty Assistance with manual labor, or A modified work schedule. Because these accommodations are defined as “reasonable” within the PWFA, employers will be hard pressed to argue that providing these accommodations poses an undue hardship. Under the language of the PWFA, employers claiming undue hardship must show that the accommodation poses “significant difficulty or expense” to the employer. This long overdue law spells out in clear terms what employers are required to provide to pregnant employees or employees experiencing a condition related to pregnancy and hopefully will serve its purpose of normalizing pregnancy in the workplace. For more information, please contact us at 781-930-3127 Notice: JavaScript is required for this content.No Fields Found.
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Heightened FAPE Standard Announced by the Supreme Court
As the new school year begins, it’s important to keep in mind the new Free and Appropriate Public Education (FAPE) standard introduced by the United States Supreme Court earlier this year. On January 11, 2017, the Supreme Court heard oral arguments in Endrew F. v. Douglas County School District to decide the level of educational benefit a school must deliver to students with disabilities in order to meet the FAPE requirement of the Individuals with Disabilities Education Act (“IDEA”). By way of background – In 1982, the Supreme Court decided that the FAPE requirement compelled schools to provide services to students with disabilities that confer “some educational benefit.” The 10th Circuit, the relevant circuit in Endrew F., interpreted “some educational benefit” to mean “merely more than de minimis.” The family in Endrew F., however, argued that FAPE required schools to provide students with disabilities with a higher level of educational benefit – specifically, a “meaningful” educational benefit. The Endrew F. case involved a young boy with autism whose parents believed that he was not being provided FAPE by his Colorado school district. Because of this, the boy’s parents unilaterally placed him in a private educational setting and sought reimbursement from the school district. The administrative hearing officer, U.S. District Court for the District of Colorado, and 10th Circuit Court of Appeals applied the “merely more than de minimis” standard and determined that the boy had received enough of an educational benefit to meet the FAPE requirement, and ruled in favor of the school district. In reviewing the lower courts’ decisions, the Supreme Court issued a unanimous ruling on March 22, 2017. It vacated the 10th Circuit Court of Appeals’ decision and announced a higher standard of education for children with disabilities. The Supreme Court rejected the “merely more than de minimis” standard and adopted a standard that neither party had argued for, holding that schools must provide students with an education program that is “reasonably calculated to allow the child to make progress appropriate in light of the child’s circumstances.” Justice Roberts, who penned the court’s decision, noted that every child should be given an opportunity to meet challenging objectives and that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.” Many Special Education Advocates and parents have celebrated the Endrew F. outcome, hopeful that it will give way to improvements in special education programs for children with disabilities across the country. In Massachusetts, it has been our experience that hearing officers have always applied this higher standard so, in our opinion, this decision will not have much impact on BSEA cases. However, it is certainly a relief that the Supreme Court has supported a child’s right to a program intended to result in more than minimal progress. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.No Fields Found.
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