Public schools in Massachusetts face an ever expanding set of increasingly complex legal obligations. At Mirick O’Connell, we partner with our public school clients to provide timely, cost-efficient advice and representation to assist them in delivering educational services to their students.
Labor and Employment
We advise our clients in all labor and employment matters. We regularly advise our clients concerning their labor relations, including collective bargaining, grievance arbitration and unfair labor practices. We also provide advice concerning personnel issues such as reductions-in-force, discipline, compliance with state certification requirements, the non-renewal of teachers without professional teacher status, managing employees with medical conditions, sexual harassment investigations, and wage and hour laws. In addition, we draft employment policies and employment agreements for non-union employees such as superintendents, principals and business managers. We are one of only a few Massachusetts law firms with a public school practice that also has an extensive employee benefits practice.
In addition, we represent our clients in governmental investigations and defend them against claims before state and federal agencies, including the U.S. Department of Education and Massachusetts Department of Elementary and Secondary Education, the Massachusetts Division of Labor Relations, the Massachusetts Commission Against Discrimination, the Equal Employment Opportunity Commission, the U.S. Department of Labor and the Massachusetts Attorney General’s Office, as well as before state and federal courts.
We have successfully negotiated numerous union concessions to help our clients manage their budgets, prevailed at arbitrations involving both contract and disciplinary grievances and accomplished the removal of non-performing administrators in a manner that avoided legal action against the client.
Student Rights, Policies and Discipline
We advise our public school clients on issues of student rights, student discipline and student handbooks. As well, we routinely advise clients on matters such as bullying; allegations of sexual harassment against other students; student records; discipline for violence; drug/alcohol use and absenteeism; and participation in student activities.
Our recent engagements include the expulsion of students for the use of drugs on a school field trip, the analysis of a school district’s potential liability for students’ participation in an out-of-state academic competition and the determination of the permissible scope of drug testing at school-related activities.
We represent and advise our clients in special education matters with a full understanding of the difficult dynamic that exists among our clients’ limited resources, its legal obligations and the ongoing relationship between the school district and the student and the student’s family. We, therefore, focus on providing pragmatic advice and early resolution of the dispute. When this approach is not successful in accomplishing our clients’ goals, we aggressively represent their interests before the Bureau of Special Education Appeals and in court as appropriate. We also counsel our clients on related issues under Section 504 of the Americans with Disabilities Act.
We have recently represented clients in LEA Assignment matters and negotiated to have the DESE assume financial liability for a student’s placement. We have also represented clients in special education appeals, including cases involving students with autism.
We have extensive experience in advising public school districts on school building projects from the appointment of an Owner’s Project Manager through the resolution of post-construction warranty claims. We counsel clients and draft and negotiate contracts associated with the hiring of architects under the Designer Selection law, the pre-qualification of bidders, and the award of general contracts for construction. We also represent our clients in project closeout issues and, when necessary, pursue warranty claims and surety payment on performance bonds.
We have recently advised and represented clients in connection with both new building and school renovation/expansion projects.
We routinely advise our public school districts in issues such as interpretations of Chapter 71, the open meeting law, public records law, the state conflict of interest law, public procurement requirements and the budget process.
We have recently advised clients in connection with their regional district agreements, superintendency union agreements and the use of executive session. We have also negotiated vendor contracts such as school bus service and food service contracts.
NLRB Issues Employer-Friendly “Joint Employer” Definition
On February 25, 2020, the National Labor Relations Board (the “NLRB”) announced the final rule governing “joint employer” status under the National Labor Relations Act. The determination of whether an entity is a “joint employer” with a direct employer for purposes …[ load webpage to read more ]
Act Requiring the Hands-Free Use of Mobile Devices Went into Effect Yesterday
On November 25, 2019, the Commonwealth of Massachusetts approved Chapter 122 of the Acts of 2019. Under this Act, operators of motor vehicles cannot use handheld electronic devices while driving. The Act specifically holds that no operator of a motor vehicle shall …[ load webpage to read more ]
U.S. Department of Education and U.S. Department of Health and Human Services Updates Joint Guidance on the Applicability of FERPA and HIPAA to Student Records
The U.S. Department of Education and the U.S. Department of Health and Human Services recently issued an update to their Joint Guidance on the Applicability of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and …[ load webpage to read more ]
U.S. Department of Labor Issues Final Rule on Joint Employer Regulations Under the Fair Labor Standards Act
On January 12, 2020, the United States Department of Labor (“DOL”) issued its final rule under the Fair Labor Standards Act (“FLSA”) governing joint employer status, which significantly narrows the scope of joint employer liability. Under the prior Administration, the DOL …[ load webpage to read more ]
U.S. Department of Labor Issues Final Rule About How to Calculate “Rate of Pay” Under Fair Labor Standards Act
Late last week, the United States Department of Labor (DOL) issued a Final Rule intended to clarify and update a number of the regulations that interpret the requirements for calculating and paying the regular rate under the Fair Labor Standards …[ load webpage to read more ]
A Friendly Reminder about Veterans’ Rights to Time Off for the Upcoming Veterans Day Holiday under the Massachusetts BRAVE Act
In 2018, the Massachusetts legislature enacted a broad sweeping statute entitled “An Act Relative to Veterans’ Benefits, Rights, Appreciation, Validation and Enforcement,” also known as the BRAVE Act. The BRAVE Act addressed a number of issues affecting veterans and military …[ load webpage to read more ]
New DOL FLSA Rule Issued September 24, 2019
The United States Department of Labor issued its final rule on the earnings threshold for exempt employees under the federal Fair Labor Standards Act (“FLSA”) on September 24, 2019 (the “Overtime Rule”). The Overtime Rule will require employers to pay …[ load webpage to read more ]
Massachusetts Legislature Responds to Janus Decision
Yesterday, the Massachusetts Legislature voted to override Governor Baker’s veto of House Bill 3854, which responds to the U.S. Supreme Court’s decision in Janus v. AFSCME. The Bill relieves unions representing public sector employees of certain obligations, increases their access to …[ load webpage to read more ]
The Summer of Noncompete Reform: Three Other New England States Get In On the Act – Part 2
Following the Massachusetts legislature’s attempt at reform of the use of employee noncompetition agreements last summer, three other New England states – New Hampshire, Maine and Rhode Island –passed their own noncompetition agreement reform bills in the summer of 2019. …[ load webpage to read more ]
The Summer of Noncompete Reform: Three Other New England States Get In On the Act – Part 1
Most readers are probably aware that the Massachusetts legislature, after a decade of starts and stops, passed a very detailed bill retaining but reforming the use of employee noncompetition agreements last summer. While we were the first New England state …[ load webpage to read more ]