E-Alerts

Are You Ready For The 2010-2011 School Year? Tips For Getting Into Compliance And Protecting Your School

With the new school year just around the corner, many schools are focusing on compliance over the summer.  This e-alert is intended to provide a checklist of personnel matters and compliance tasks for schools to consider when preparing for the new school year.

            Employee Handbook and Personnel Policies

We recommend that schools review and update their personnel policies annually, to ensure that the policies comply with all applicable laws and reflect current best practices.  This year, given the numerous and significant changes to many relevant laws, such a review is especially critical.

In the past year, there have been numerous changes in federal and state labor and employment laws that ought to be reflected in school personnel policies.  Here are a few examples:

• Revised regulations implementing the federal Family and Medical Leave Act became effective October 27, 2009.  The revised regulations dramatically alter schools’ obligations in many key respects and require schools to modify existing leave policies and related documentation.

• The Fair Labor Standards Act was amended to require that employers provide nursing mothers with a private place and reasonable unpaid time off of work to lactate.

• The federal Genetic Information Nondiscrimination Act became effective on November 21, 2009.  While many states already prohibit discrimination based on genetic information, this federal law establishes a new baseline across the country.

• States continue to grapple with same-sex marriage and civil union laws.  Schools should review their policies against the constantly changing laws of the state(s) in which they are located to ensure compliance with these variations in state law.

• The new Massachusetts Data Security Law went into effect on March 1, 2010, requiring that allMassachusettsschools have written security programs in place and ensure that their data-security technology complies with the new law.  With this law,Massachusettsjoins 38 other states that already have some type of data-breach law.  Compliance with the law will affect many policies, including but not limited to:  electronic communications, confidentiality, code of conduct, telecommuting, and more.

• Employees’ online activities continue to impact the workplace.  Schools should review their electronic communications monitoring policies and practices to ensure that such policies address employees’ blogs and online profiles with social networking sites, such as Facebook, instant messaging, texting and more, while not violating employees’ privacy rights and the right to engage in collective action.

In addition to reviewing these changes in the law, schools should review their personnel policies to consider all of the laws of the particular state in which they are located to ensure that written personnel policies comport with actual practices.  Given the current economic climate, schools ought to review any severance policies, including less formal severance practices and guidelines, to determine if they need to be modified or replaced altogether.

Student/Parent Handbooks

We recommend that schools focus on many recent changes in the law that are relevant to students and overall school operations.  The following is a list of a few of the most cutting-edge and thorniest rules and regulations specific to schools that should be properly addressed in student/parent handbooks:

• In light of the U.S. Supreme Court’s recent decision regarding strip searches and the extent of permissible searches of students, schools are advised to review and update any search and seizure policies to ensure that they are in compliance.

• Many Massachusetts schools are required to comply with the Anti-Hazing Statute, which mandates, among other things, that schools adopt a disciplinary policy explicitly addressing the organizers of, and participants in, hazing activities.  Distribution of the statute may also be required.

• Electronic communications pose a complex challenge for schools, with the prevalence of Facebook, texting, instant messaging, blogging and more.  Schools should adopt a comprehensive policy addressing all types of unacceptable use of electronic communications by students, as well as the consequences for violations of the policy.

• Many state laws (includingMassachusetts) require schools to comply with child protection statutes, including, in particular, the child abuse reporting obligation.  Student/parent handbooks should contain a detailed policy addressing the school’s obligations with respect to the child abuse reporting statute.  Schools may be required to prove that they have such a policy in order to renew their liability insurance.

• The rules and regulations regarding criminal records and sexual offender checks have undergone significant changes in recent years, which can create potential liability for schools that are not in complete compliance.

• Provisions regarding academic probation should clarify that the school has absolute discretion over whether to advance a child, send a child back a grade, offer re-enrollment and make other decisions regarding a child’s academic advancement.

• Schools should adopt a clearly-written discipline policy in which prohibited conduct is listed and defined, with the potential consequences of violation set forth.

• In order to avoid discrimination claims for failure to accommodate, student/parent handbooks should include an attendance and vacation policy that is carefully crafted (i.e. allowing time off for holidays of all religions, and not just those of some.)

• Legislation in many states, including most recentlyMassachusetts, provides that schools have a duty to protect students from harm and to decrease the chances of injuries resulting from incidents of bullying and harassment at school.  Accordingly, schools should adopt a policy prohibiting bullying and harassment which delineates appropriate and adequate remedial steps, including follow-through procedures.

• Given the amount of personal, confidential student information to which schools are privy, it is important that schools include a confidentiality policy, stating the school’s commitment to ensuring the confidentiality of student information.

• Schools should have both students and parents sign an acknowledgement form for receipt of the student/parent handbook, in order to help insulate the school from claims that either a student or parent did not know the contents of the handbook.  This practice can also be used as an opportunity to have students and parents sign and agree to abide by the school’s mission statement.

Written Information Security Program

As of March 1, 2010, covered entities inMassachusetts, including independent schools, must implement certain information technology security requirements, a detailed Comprehensive Written Information Security Program (“WISP”), conduct employee training in the WISP, and address service provider compliance issues.  There are many personnel policies and agreements that are affected by the new regulations – each of which must be promptly updated for compliance.  The list includes, but is not limited to: electronic communications, confidentiality, data retention, employee conduct and termination/return of company property policies, as well as telecommuting, non-disclosure, non-compete, independent contractor, severance and executive employment agreements.

As the deadline for compliance was March 1, 2010, covered entities that are not in compliance must act promptly to avoid being penalized for failing to comply with the Massachusetts Data Security Law.

Bullying Prevention and Intervention Plan

Many schools are grappling with challenging bullying issues.  Numerous states have responded with complex legal requirements.  TheMassachusettsexample, detailed below, is one of the most comprehensive, and provides a useful example of a bullying protocol for schools throughout theUnited States.

Under Massachusetts’ recently enacted anti-bullying legislation, each Massachusettsschool, by December 31, 2010, is required to develop a bullying prevention and intervention plan that complies with certain mandates, discussed at length in our prior E-Alert.  Most notably, the absence of such a plan not only will violate the law, but also could make a school vulnerable to various potential lawsuits.  For instance, a bullied student could sue the school for negligent infliction of emotional distress based on the school’s failure to provide protection against bullying.  Similarly, a student disciplined by a school for allegedly bullying a classmate could sue the school for failing to have implemented and conducted the required investigation.

Given the anti-bullying law’s significant compliance obligations, we urge all schools to promptly take the following measures:

• Draft and implement a bullying prevention and intervention plan;
• Ensure that the school’s actual practices comport with the bullying prevention and intervention plan;
• Review all student and personnel policies and update them for compliance (we recommend that this be done each year);
• Implement and/or update an internal complaint process to comport with best practices for protecting the entire school community;
• Train faculty, staff and administration on the bullying prevention and intervention plan, as well as on how to prevent, identify and remedy hazing, harassment and bullying; and
• Implement annual acknowledgment forms with respect to these issues.

The Firm has developed and presented a comprehensive compliance program, and we would be pleased to assist schools with all of these compliance tasks.

Additional Compliance Tasks

In addition to the above, schools may want to consider implementing and updating various other important documents, each of which can provide significant legal protection to a school.  Such documents include:  an Acceptable Use of Technology Agreement, an Enrollment (or Admission) Agreement, a Field Trip Permission Slip and a Trustee Confidentiality Agreement.

 **********************

We hope this information is helpful to you.  The Firm has extensive experience in assisting independent schools with compliance endeavors, throughout the United States.  Please feel free to contact me for assistance or with any other questions.