http://www.sscc-law.com/ On December 27, 2011, the Connecticut Appellate Court issued its decision in the case of Barry v. New Britain Board of Education, affirming the Connecticut Superior Court’s April 2010 entry of summary judgment in favor of the New Britain Board of Education.  Attorney McKeon successfully argued before the appellate court on behalf of the Board, having also prevailed in the superior court.  The plaintiff had claimed, in part, that the 2004 budget-driven elimination of his position had constituted a breach of his employment agreement.  The plaintiff previously made the same claims in the form of a federal age-discrimination and retaliation lawsuit against the Board, which case Attorney McKeon won in December 2006 in the United States District Court and in November 2008 before the United States Court of Appeals for the Second Circuit. http://www.sscc-law.com/newsresources-news-item.php?item=111 Attorney Roseann Padula has been appointed to the Town of Southbury’s first, full-time Ethics Commission.  The Commission is comprised of a three-member panel with staggered terms of office (three-, two- and one-year terms), each commencing January 15, 2012.  Attorney Padula’s term is three years, commencing November 4, 2011.  The Commission is charged to investigate ethics complaints against elected and appointed town officials and town employees.  Because the Commission is newly formed, it is also authorized to establish the rules and procedures that the Commission will follow when investigating complaints.  http://www.sscc-law.com/newsresources-news-item.php?item=108 Attorneys Connon and McKeon both gave presentations at the November 2011 CABE Annual Convention in Groton, Connecticut.  Attorney Connon lead a workshop on Connecticut’s Freedom of Information Act, which prepared board members and superintendents to contend with the requirements of the FOIA, including recent developments relating to e-mail records and posting notices on district websites.  Attorney McKeon spoke on board members’ roles and responsibilities in a wide spectrum of Board-level hearings, discussing in practical terms the legal bases for and the procedural requirements of student disciplinary and accommodations proceedings as well as grievance, non-renewal and termination hearings. http://www.sscc-law.com/newsresources-news-item.php?item=112 Sullivan, Schoen's  2011 Special Education Forum will be  held on December 6, 2011 at the Crowne Plaza Hotel in Cromwell, Connecticut . The Forum starts off with an 8:30 Continental Breakfast, followed by a three-hour discussion from 9:00 until 12:00 with Attorneys McKeon, Sommaruga and Scott about issues and trends in special education law. Scheduled topics included: 1. Legal Developments: New State Special Education Regulations, New Federal Regulations on Early Intervention, Recent Cases. 2. Connecticut's Hearing Process: Burden of Proof, New Procedureal Safeguards Manual. 3. Magnet/Charter/Choice Schools. 4. Updates on Section 504: Child Find, Discipline. 5. Independent Evaluations and Evaluators. 6. When Bad Things Happen to Good PPTS. For more information on this or  future forums please contact our Forum Coordinator, Debbie Gallo , at (860) 233-2141. http://www.sscc-law.com/newsresources-news-item.php?item=69 Attorneys William Connon and Susan Scott successfully argued before four different arbitration panels that the New Britain Board of Education had just cause to terminate the employment of four secretaries for poor performance.  Representing the employees, AFSCME Council 4, Local 1186 claimed that each of the terminations were not for just cause, but rather, an attempt to avoid the layoff provisions of the collective bargaining agreement. In each case, prior to terminating the employees’ employment, the Board conducted multiple evaluations over a significant period of time and engaged in a variety of efforts to rehabilitate the performance of these employees. These victories validated the school district’s commitment to requiring continued competence and skill from its support staff.  SBMA Case ## 2011-A-0015 (May 16, 2011),  2011-A-0025, (June 2, 2011), 2011-A-0017 (June 26, 2011), 2011-A- 0016 (October 24, 2011) http://www.sscc-law.com/newsresources-news-item.php?item=107 Due to a recent revision of Federal Communications Commission rules implementing the Children’s Internet Protection Act (CIPA)[1], participants of E-rate discounts for Internet access need to review and revise their Internet safety policies.[2] Specifically, the FCC has stated that boards of education “receiving an E-rate funding for Internet access must certify on its FCC Form 486 or FCC Form 479 beginning with funding year 2012, that it has updated its Internet safety policy.” FCC Report and Order 11-125 (August 11, 2011).   Most of the revisions to the FCC regulations simply implement the current statutory requirements and are not really “new” in the sense that they impose additional obligations on E-rate participants. Nevertheless, if your school district is an E-rate participant or plans to become one, you should review your Internet safety policy (which may be incorporated in your acceptable use policy) to ensure that by July 1, 2012, your policies include the following (bold items are the requirements, regular text is commentary):   Educating Students About Appropriate Online Behavior   -         Your policy must “provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking sites and in chat rooms and cyberbullying awareness and response.”[3] -         The policy itself need not include educational materials, but merely provide for the education to take place. -         The FCC regulations do not define “social networking” or “cyberbullying” and do not give details on how to educate students but rather, leaves the interpretation of such terms to the local boards of education.   Technology Protection Measure   -         The policy must establish “a technology protection measure that protects against Internet access by both adults and minors to visual depictions that are obscene, child pornography or with respect to use of the computers by minors, harmful to minors.”[4] The terms, “minor,” “obscene,” “child pornography,” and “harmful to minors” have not changed, but are now explicitly referred to in the regulations at 45 C.F.R. 54.520(a).   -         The board of education must enforce the operation of the technology protection measure during use of its computers with Internet access. -         The board of education may authorize an administrator, supervisor or other person to disable the technology protection measure during use by an adult to enable access for bona fide research or other lawful purpose. The FCC has declined to define “bona fide research” or how much disclosure must accompany requests for access, leaving such decisions up to the board of education.   Monitoring Minors Online Activities    -         Your policy must include monitoring the online activities of minors. The definition of minor is “any individual who has not attained the age of 17 years.”[5] -         Your policy must address access by minors to inappropriate matter and address measures designed to restrict minors’ access to materials harmful to them. The board of education determines what content is inappropriate for minors. The FCC specifically declined to find that access to Facebook or MySpace are per se “harmful to minors,” and local authorities may decide whether to block access to such sites. -         Your policy must address the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications. -         Your policy must address unauthorized access, including hacking and other unlawful activities by minors online. -         Your policy must address unauthorized disclosure, use and dissemination of personal information regarding minors. -         In the future, the FCC intends to address the potential policy issues associated with the application of CIPA requirements to the use of portable devices owned by students, such as laptops and cellular telephones when those devices are used in a school to obtain Internet access that has been funded by E-rate. Until then, there is no guidance from the FCC on this topic.    Public Notice of Policy   -         Public notice and at least one public meeting or hearing to address the proposed Internet safety policy is required for the initial adoption of the Internet safety policy. -         Revisions of existing policies need not follow the public notice rule of CIPA, though you will still need to follow your board by-laws regarding policy revisions as well as the mandates of the Connecticut Freedom of Information Act.   Retention of Records   -         Your Internet safety policy and documentation must be retained for at least five years after the last day of service delivered in a particular funding year.  Please note that because the 5 years starts running on the last day of service delivered under the E-rate, you are likely to retain the policy and supporting documents for much more than 5 years after the policy was initially adopted.    If you have any questions about this client advisory or would like assistance in reviewing and revising your Internet safety or acceptable use policies, please contact Attorney Susan Scott at (860) 233-2141 or sscott@sscc-law.com [1] 45 C.F.R. 54.520, “Children’s Internet Protection Act certifications required from recipients of discounts under the federal universal service support mechanism for schools and libraries”; CIPA is codified at 47 U.S.C. § 254(h) and (l) and 20 U.S.C. § 6777.   [2] Please be aware that CIPA requirements for Internet safety do not apply to schools receiving discounts only for telecommunications, such as telephone service. [3] 45 C.F.R. 54.520(c)(i). [4] 45 C.F.R. 54.520(c)(i). [5] 45 C.F.R. 54.520(a)(4)(i) http://www.sscc-law.com/newsresources-resources-item.php?item=92 As a consequence of the most recent state legislative session, local and regional boards of education will need to revise the following policies:   1.                  Bullying. While the law no longer requires school districts to develop and implement a “bullying policy,” by January 1, 2012, you will have to develop a “safe school climate plan.” The State Department of Education (SDE) is empowered to develop model safe school climate plans. Since the plan must be administered under the general supervision of a safe school climate coordinator (chosen by the Superintendent from among existing staff) as well as safe school climate specialists (principals or designees), it would be advisable to have such personnel involved in the development of the plan. Further guidance regarding the required elements of your safe school climate plan will be addressed in a separate advisory.   2.                  Student Discipline/Expulsion Three separate acts impact the student discipline/expulsion policy. Please refer to the attached model student discipline policy for specific guidance regarding these revisions.   3.                  Truancy. Current truancy policies must be revised to reflect the following changes: a.      In the section regarding the system of monitoring individual unexcused absences of children in grades K-8, when there is no indication that the parent/guardian was aware of the absence, a reasonable effort to notify such parent/guardian must be made by telephone and now, also by mail. The mailed notice shall include the warning that two unexcused absences from school in a month or five unexcused absences in a school year may result in a complaint filed with the Superior Court alleging the belief that the child’s family is a family with service needs.   b.      With regard to Superior Court complaints, if a parent/guardian of a child who is truant (still defined as four unexcused absences in one month or ten unexcused absences in a school year) fails to attend the meeting to review and evaluate the reasons for the child’s absences or fails to cooperate in attempting to solve the problem, the policy must now require the Superintendent of Schools to file a written complaint with the Superior Court not later than 15 calendar days after such failure to attend or failure to cooperate.   4.                  Child Abuse and Neglect. Boards must revise their policy regarding the reporting of suspected child abuse and neglect by February 1, 2012. By October 1, 2011, the Department of Children and Families (DCF) is expected to develop a model policy for use by Boards of Education. Although Boards are not required to adopt the model policy that DCF creates, any policy that you do adopt should be compatible with the DCF model. Therefore, it would be prudent to wait until the DCF has had an opportunity to publish the model policy before revising your current policy.    5.                  Abuse or neglect of persons with mental retardation. State law requires registered nurses, licensed practical nurses, occupational therapists, psychologists, social workers, teachers, principals, guidance counselors, paraprofessionals, physical therapists, speech and language pathologists (among others) who have reasonable cause to suspect of believe that a person with intellectual disability (formerly “mental retardation”) has been abused or neglected to report such information to the Director of Developmental Services. Any policy regarding the mandatory reporting this type of abuse or neglect must be updated to reflect the modern terminology “intellectual disability” in lieu of “mental retardation.”   6.                  Sick leave. The state’s new mandatory sick leave provisions apply only to “service workers” as that term is used in the federal Bureau of Labor Statistics Standard Occupational Classification system. In the context of the school environment, this includes social workers, registered nurses, security guards, crossing guards, food preparation workers, cafeteria attendants, janitors and building cleaning workers, secretaries and administrative assistants, bus drivers, office clerks, data entry and information processers, and receptionists. Significantly, this law makes part-time service workers who work an average of 10 or more hours per week in the most recent completed calendar quarter eligible for sick leave. This must be administered with the understanding that nothing in the law is intended to preempt or override the terms of any collective bargaining agreement effective prior to January 1, 2012.   To revise written policies regarding sick leave, handbooks, and/or notifications of compensation & benefits for non-union personnel, consider the following:   Sick Leave for Service Workers Sick leave for non-exempt service workers (who are not otherwise eligible for sick leave) will be provided only as required by state law. Pursuant to Public Act 11-52, beginning January 1,    2012, employees who are service workers (as defined by law) shall accrue sick leave at a rate of one hour of sick leave for each 40 hours worked up to a maximum of 40 hours accrued sick leave per calendar year. Such service workers may use their accrued sick leave only if they have (a) completed 680 hours of work (as measured from the date the employee began to accrue the sick leave); and (b) worked an average of ten (10) or more hours per week in the most recent calendar quarter. Sick leave will only be provided for the purposes established by law. Service workers may carry over up to forty unused accrued hours of sick leave from one calendar year to the next, but no service worker may use more than 40 hours in one year. Employers are prohibited from retaliating against a service worker for requesting or using sick leave for which the service worker is entitled. Service workers have a right to file a complaint with the Labor Commissioner for any violations of the law.   7.                  Credit reporting. In your policies, handbooks and employment applications, you may not require an employee or prospective employee to submit to a personal credit check as a condition for employment unless the credit report is required by law, there is a reasonable belief that the employee committed a violation of the law related to the employee’s job, or the report is substantially related to the employee’s current or potential job or the employer has a bona fide reason to request or use information in the report that is substantially job-related and is disclosed to the employee or applicant in writing.   8.                  Graduation. In the section of your graduation policy that permits the awarding of a diploma to veterans of World War II who left high school in order to serve in the armed services, you should now add “veterans of Korean hostilities.” For example:   The Board of Education may award a high school diploma to veterans of World War II or the Korean hostilities who left high school to serve in the armed forces and did not receive a diploma as a consequence of such service.   9.                  Weighted grading. State law requires that boards of education have a written policy that notifies parents and students whether a grade in an honors or advanced placement class is or is not given added weight for the purposes of calculating grade point average and determining class rank. Last year, the state legislature mandated that all boards of education shall provide an advanced placement course program. This year, the definition of “advanced placement course program” was revised. Therefore, if you have a policy that does give added weight to advanced placement courses, you may revise your weighted grading policy to include the new definition of advanced placement course program. Such a policy on weighted grading might read as follows:   It is the policy of the Board of Education that a grade in an honors or advanced placement course is given added weight for purposes of calculating grade point average and determining class rank. The administration shall develop and publish a formula for calculation of grade   point average and class rank reflecting the weighted grading system. The Superintendent or his/her designee shall ensure that parents are notified of this policy.   “Advanced placement course program” means a program approved by the State Board of Education that provides college or university-level instruction as part of a course for which credit is earned at the high school level.   10.              Education Records. Effective October 1, 2011, boards of education must disclose student records to state-operated detention facilities or community detention facilities pursuant to FERPA regulations, 34 C.F.R. 99.38, without the prior written consent of the parent/guardian (but with notice to such parent/guardian). In your education records policy or administrative regulations, in the section regarding the disclosure to state and local officials related to the juvenile justice system’s ability to effectively serve the student, add the following:   State operated detention facility of community detention facility Upon the request of a state operated or community detention facility, the board of education shall disclose the student’s educational records. If the student’s parent/guardian did not give prior written consent for the disclosure of such records, the board shall send notification of such disclosure to the parent or guardian at the same time that it discloses the records.   11.              Non-discrimination. All non-discrimination and unlawful harassment policies, regulations and complaint forms should be revised to include the protected category of “gender identity or expression.” The new law becomes effective October 1, 2011. Wherever your policies refer to the various protected classes of persons, you will need to add the phrase “gender identity or expression” such as the following sample excerpts:   PERSONNEL- Equal Employment Opportunity: The Board of Education provides equal employment opportunities for all employees and applicants for employment. Except in the case of a bona fide occupational qualification or need or as otherwise permitted or required by law, all employment decisions are made without regard to race, color, national origin, sex, age, disability, religion, sexual orientation, marital status, ancestry, genetic information, veteran status, gender identity or expression or any other basis prohibited by law. Employment decisions include, but are not limited to, recruitment, hiring, promotion, transfer, compensation, benefits, training, layoff and termination.    PERSONNEL- Unlawful Harassment: It is the policy of the Board of Education to maintain a working environment that is free from sexual, racial and other unlawful harassment. The Board will not tolerate the harassment of any applicant, employee, independent contractor, or volunteer based on race, color, national origin, sex, age, disability, religion, sexual orientation, marital status, ancestry, genetic information, gender identity or expression or any other basis prohibited by law.    STUDENTS- Equal Educational Opportunity: It is the policy of the Board of Education that students shall be provided an equal opportunity to participate in and benefit from the activities, programs, and courses of study offered by the school district without discrimination on the basis of race, color, national origin, sex, age, disability, religion, sexual orientation, alienage, gender identity or expression or any other basis prohibited by law.    STUDENTS- Unlawful Harassment: It is the policy of the Board of Education to maintain a working and learning environment that is free from sexual, racial and other unlawful harassment. The Board will not tolerate the harassment of any student based on race, color, national origin, sex, disability, religion, sexual orientation, alienage, gender identity or expression or any other basis prohibited by law.  http://www.sscc-law.com/newsresources-resources-item.php?item=91 Each year, school districts must provide students and parents with a variety of notices that are required by law and/or Board policy. This checklist is designed to assist you in complying with these obligations as you prepare for the 2011-2012 school year.    REQUIRED BY LAW: The following subjects must be provided to students/parents at the beginning of the year: ____       Non-discrimination (notice with name / title of personnel who handle inquiries/complaints) ____      Unlawful harassment (policy and complaint procedure or summary with reference to policy) ____      Special education child find/504 procedural safeguards (summary of information) ____      Student conduct and school discipline (policy) ____      Attendance ____       Bullying (Safe School Climate Plan must be developed by January 1, 2012) ____       Truancy ____      Pesticide management (policy or written guidelines) ____       Management of Life threatening Food Allergy (plan) ____       Education records- FERPA notice of rights (model notice) ____       Directory information (model notice and form) ____       Military recruiters (model notice and form) ____       Protection of Pupil Rights Amendment (policy) ____       Title I parental involvement (policy, if applicable to your district)   OPTIONAL:   The following topics, though not specifically required to be subjects of an annual notice, are recommended for annual notice. Information about these topics may be provided directly to students/parents or published in student handbooks. Please note that the list is not exhaustive, but includes the most compelling topics from a legal and policy perspective. Your Board’s policies may require annual notices on additional topics.   With student conduct, notice is required of the suspension/expulsion policy in particular, but you should also give adequate notice to students of all other conduct-related policies that may result in disciplinary consequences including, at minimum, the following:   ____       Alcohol, drugs, tobacco ____      Weapons and dangerous instruments ____       Search and seizure ____       Dress code (if applicable) ____       Acceptable use of computer resources/Internet access ____      Personal electronic devices (cell phones, etc) ____       Sportsmanship (if applicable) ____       Parent-teacher conferences ____       Graduation requirements ____       School transportation complaints ____       Health (assessments/ vaccinations/ administration of medication) ____       Wellness ____       Homeless liaison ____       Nutrition programs ____       Green Cleaning   ITEMS THAT MUST BE POSTED ON SCHOOL/BOARD WEBSITES:   ____    Management of Life Threatening Food Allergy plan ____    Green cleaning program and biennial report on the condition of district facilities. ____    Pesticide program ____    Safe School Climate Plan (Must be posted by February 1, 2012)   For inquiries about this checklist, please contact: Attorney Susan Scott - (860) 233-2141 and sscott@sscc-law.com http://www.sscc-law.com/newsresources-resources-item.php?item=90 The third edition of "The Connecticut Freedom of Information Act and Access to Public Meetings and Records: a Primer for Municipal Agencies," written by Attorney Mark J. Sommaruga, has just been published and released.  Please contact the firm for information on ordering this essential manual, in which you will find many answers to your questions about compliance with the Freedom of Information Act. http://www.sscc-law.com/newsresources-resources-item.php?item=88 The General Assembly has passed, and Governor Malloy is expected to sign, new legislation that will require certain employers with fifty or more employees to provide paid sick leave to full-time and part-time employees employed as service workers. The legislation (now codified as “Public Act 11-52”) becomes effective January 1, 2012 and will apply to municipalities, boards of education and other public agencies that employ fifty or more employees. Accordingly, it is important for both public and private-sector employers to understand how the provisions of this Act may impact their operations.   BACKGROUND                   Passage of this Act was one of the most controversial acts of a controversial and historic General Assembly session. The Act requires most employers with fifty or more employees to provide hourly employees employed as service workers with a minimum of forty hours of sick leave per year. Sick leave accrues at a rate of one hour of sick leave per forty hours worked. The Act also includes a sick leave anti-retaliation provision that applies generally to all employees of covered employers with fifty or more employees.                   The Act passed the House of Representatives of the General Assembly on June 3, 2011 after passing the Senate several weeks earlier. During the legislative process, the Act was successfully amended to exclude manufacturing companies from its coverage. Governor Malloy has repeatedly said that he will sign the Act as amended.      COVERED EMPLOYERS, SERVICE WORKERS AND EMPLOYEES                   The Act defines an “employer” as any “person, firm, business, educational institution, nonprofit agency, corporation, limited liability company or other entity that employs fifty or more individuals”. Specifically excluded from coverage are manufacturers and nationally chartered 501(c)(3) organizations that provide recreation, child care and educational services (e.g. YMCA, YWCA, etc.). Whether a covered employer employs fifty or more employees is annually determined based on whether the employer employed fifty or more employees in any calendar quarter of the proceeding year.                   The Act’s mandatory sick leave provisions apply only to “service workers” as that term is used in the federal Bureau of Labor Statistics Standard Occupational Classification system. An exhaustive list of eligible service worker occupations is included in the text of the legislation. Covered occupations include food service workers, librarians, nurses, security guards, janitors, ushers, ticket takers, hairdressers, receptionists, office clerks, secretaries, administrative assistants, bus drivers and many others. Only service workers who are paid on an hourly basis and are exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act (“FLSA”) are entitled to mandatory sick leave. Additionally, day-laborers and temporary workers, defined as workers who work on a “per diem” or “occasional or irregular basis for only the time required to complete such work” are explicitly excluded from the Act’s mandatory sick leave provisions.                   In addition to its mandatory sick leave entitlement, the Act also enacts an anti-retaliation provision (discussed more fully below) that applies to all employees of covered employers with fifty or more employees. For this purpose “employee” is broadly defined as “an individual engaged in service to an employer in the business of the employer”.                  MANDATORY SICK LEAVE   Rate of Accrual                   The Act mandates that employers annually provide eligible service workers with a paid sick leave entitlement that accrues at a rate of one hour of paid sick leave per forty hours worked. Employees can accrue a maximum of forty hours of sick leave per calendar year, and can carry over up to forty hours of unused leave from year to year. Employees are not eligible, however, to actually use more than forty hours of sick leave in any calendar year.                    Eligible service workers will begin to accrue sick leave January 1, 2012, but will only be entitled to use accrued sick leave once they have worked 680 hours from January 1st. This provision applies both to existing employees and new employees hired after January 1, 2012. In addition, eligible service workers will only be entitled to the use of their accrued sick leave if they worked an average of ten or more hours a week in the most recent completed calendar quarter.   Permissible Uses                   Accrued sick leave can be used for a variety of purposes. Under the Act, sick leave can be used:   1.            For (A) a service worker's illness, injury or health condition, (B) the medical diagnosis, care or treatment of a service worker's mental illness or physical illness, injury or health condition, or (C) preventative medical care for a service worker;   2.            For (A) a service worker's child's or spouse's illness, injury or health condition, (B) the medical diagnosis, care or treatment of a service worker's child's or spouse's mental or physical illness, injury or health condition, or (C) preventative medical care for a child or spouse of a service worker; and   3.            Where a service worker is a victim of family violence or sexual assault (A) for medical care or psychological or other counseling for physical or psychological injury or disability, (B) to obtain services from a victim services organization, (C) to relocate due to such family violence or sexual assault, or (D) to participate in any civil or criminal proceedings related to or resulting from such family violence or sexual assault.                   The Act allows employers to require eligible service workers to provide up to seven days advanced notice of anticipated sick leave usage where the need for such leave is foreseeable. The Act also allows employers to require medical certification (or other appropriate certification for instances of family violence or sexual assault) where an eligible service worker is out on sick leave for three consecutive days or longer.    ANTI-RETALIATION PROVISIONS                   The Act prohibits covered employers from taking retaliatory personnel action against any employee who requests or uses sick leave in accordance with the Act’s mandatory sick leave provisions or the employer’s own sick leave policy. “Retaliatory personnel action” is defined as “any termination, constructive discharge, demotion, unfavorable assignment, refusal to promote, or other adverse employment action”. Notably, this provision of the Act applies to all employees of a covered employer with fifty or more employees and not just to eligible service workers.                    Employees who believe they have been retaliated against as a consequence of their use of sick leave or request to use sick leave may pursue a statutory cause of action against their employer. In order to do so, the employee must first file a complaint with the Commissioner of the state Department of Labor. Upon receipt of such a complaint, the Commissioner is required to advise employees covered by a sick leave policy established pursuant to a collective bargaining agreement of their alternative right to pursue a grievance with their collective bargaining agent.                    If the employee does not elect to pursue his or her retaliation claim through a grievance, a hearing is held before the Commissioner. If it is determined at such a hearing that the employer illegally retaliated against the employee, the Commissioner is empowered to award the employee appropriate legal relief including reinstatement, back pay and restoration of benefits. The Commissioner is also required to impose a $500 penalty on any employer that is found to have violated the Act’s anti-retaliation provisions. Any party aggrieved by the Commissioner’s ruling may appeal the ruling to Superior Court.   NOTICE PROVISIONS                   Effective January 1, 2012 covered employers with fifty or more employees are required to provide newly hired service workers with notice of service workers’ sick leave entitlement, notice of the anti-retaliation provisions of the Act and notice of service workers’ right to file a complaint with the Commissioner of Labor for any violation of the Act. Employers may comply with these notice requirements by posting a poster that describe these provisions in a conspicuous place at the employer’s place of business that is accessible to service workers. Posters must be in English and Spanish.[1]   INTERPLAY WITH EXISTING LEAVE POLICIES AND COLLECTIVE BARGAINING AGREEMENTS   The Act effectively imposes a paid sick-leave “floor” for hourly service workers. An employer is deemed to fully comply with the Act if it offers its eligible service workers: 1. a maximum paid leave entitlement (or combination of paid leave entitlements) of up to forty hours per year; 2. a paid leave accrual rate of one hour leave per forty hours worked, and; 3. the ability to use leave for the permissible uses guaranteed under the Act (see section on “Permissible Uses” above).                    Additionally,the Act explicitly states that it does not “preempt or override the terms of any collective bargaining agreement effective prior to January 1, 2012.” This means that any collective bargaining agreement currently in force that is set to expire after January 1st will not be impacted by the Act until the agreement expires. Given this consideration, however, any provision of the Act that is not in direct conflict with the terms of a collective bargaining agreement set to expire after January 1st may be deemed to apply to the employees covered by the collective bargaining agreement.[2] Once an agreement that became effective prior to January 1, 2012 expires its successor agreement must be appropriately amended to comply with the Act.   PRACTICAL CONSEQUENCES                   Notwithstanding the existing collective bargaining exception described above, covered service workers must be provided with the minimum sick leave entitlements described in this advisory by the Act’s effective date of January 1, 2012.   Employers should take the time to carefully review their applicable policies and collective bargaining agreement language prior to the new year. Existing contract language that is found to conflict with the provisions of the Act should be discussed with labor council prior to the start of future collective bargaining negotiations. In order to ensure compliance with the Act’s anti-retaliation provisions, employers should take care to ensure that employee sick leave requests are carefully assessed and granted or denied on the basis of clear and objective factors. Should you have any questions about this Act or your organization’s existing sick leave policies or collective bargaining agreement language please contact an attorney with this firm.                   Mandatory Paid Sick Leave Compliance Checklist   If you employ 50 or more individuals, this Act applies to your organization. Before January 1, 2012, you should:   1.      Identify provisions in current collective bargaining agreements[3] set to expire after January 1, 2012 that will need to be changed in future negotiations;   2.      Identify your organization’s “service workers” so that you can (a) provide the required notice to new hires and (b) prepare to administer the Act’s mandatory sick leave provisions. (The definition of “service worker” as defined by the law is attached);   3.      Review personnel policies and employee handbooks to make necessary revisions to existing sick leave provisions. Of specific concern are provisions that state that part-time employees are not eligible for sick leave, because part-time service workers are now in fact eligible. (A draft employee handbook excerpt is provided below);   4.      In revising policies and handbooks, consider whether you want to require advance notice not to exceed seven days prior to the date such leave begins if foreseeable and documentation requirements as per law—these are the optional elements to the law;   5.      Be aware that the law allows employees to carry over up to 40 hours of accrued sick leave from one calendar year to the next calendar year. This may be contrary to any existing sick leave practices or policies your organization may have that are based on carrying over accrued time from fiscal year to fiscal year.   Draft Employee Handbook Excerpt:   Paid Sick Leave for Service Workers   Sick leave for non-exempt service workers (who are not otherwise eligible for sick leave) will be provided only as required by state law. Pursuant to Public Act 11-52, beginning January 1, 2012, employees who are service workers (as defined by law) shall accrue sick leave at a rate of one hour of sick leave per 40 hours worked, up to a maximum of 40 hours accrued sick leave per calendar year. Such service workers may use their accrued sick leave only if they have (a) completed 680 hours of work (as measured from the date the employee began to accrue the sick leave); and (b) worked an average of ten (10) or more hours per week in the most recent calendar quarter. Sick leave will only be provided for the purposes established by law. Service workers may carry over up to 40 unused accrued hours of sick leave from one calendar year to the next, but no service worker may use more than 40 hours of paid sick leave in one year. Employers are prohibited from retaliating against a service worker for requesting or using sick leave for which the service worker is entitled. Service workers have a right to file a complaint with the Labor Commissioner for any violations of the law.       “SERVICE WORKERS” UNDER PUBLIC ACT 11-52         The following list includes job titles identified as “service workers” under Public Act 11-52. Subject to the limitations described in the attached Client Advisory, hourly, non-FLSA exempt employees in these job titles (not including day or temporary workers) are eligible for mandatory paid sick leave effective January 1, 2012:   ·         Food Service Managers; ·         Medical and Health Services Managers; ·         Social Workers; ·         Social and Human Service Assistants; ·         Community Health Workers; ·         Community and Social Service Specialists; ·         Librarians; ·         Pharmacists; ·         Physician Assistants; ·         Therapists; ·         Registered Nurses; ·         Nurse Anesthetists; ·         Nurse Midwives; ·         Nurse Practitioners; ·         Dental Hygienists; ·         Emergency Medical Technicians and Paramedics; ·         Health Practitioner Support Technologists and Technicians; ·         Licensed Practical and Licensed Vocational Nurses; ·         Home Health Aides; ·         Nursing Aides, Orderlies and Attendants; ·         Psychiatric Aides; ·         Dental Assistants; ·         Medical Assistants; ·         Security Guards; ·         Crossing Guards; ·         Supervisors of Food Preparation and Serving Workers; ·         Cooks; ·         Food Preparation Workers; ·         Bartenders; ·         Fast Food and Counter Workers; ·         Waiters and Waitresses; ·         Food Servers, Nonrestaurant; ·         Dining Room and Cafeteria Attendants and Bartender Helpers; ·         Dishwashers; ·         Hosts and Hostesses, Restaurant, Lounge and Coffee Shop; ·         Miscellaneous Food Preparation and Serving Related Workers; ·         Janitors and Cleaners, Except Maids and Housekeeping Cleaners; ·         Building Cleaning Workers; ·         Ushers, Lobby Attendants and Ticket Takers; ·         Barbers, Hairdressers, Hairstylists and Cosmetologists; ·         Baggage Porters, Bellhops and Concierges; ·         Child Care Workers; ·          Personal Care Aides; ·         First-Line Supervisors of Sales Workers; ·         Cashiers; ·         Counter and Rental Clerks; ·         Retail Salespersons; ·         Tellers; ·         Hotel, Motel and Resort Desk Clerks; ·         Receptionists and Information Clerks; ·         Couriers and Messengers; ·         Secretaries and Administrative Assistants; ·         Computer Operators; ·         Data Entry and Information Processing Workers; ·         Desktop Publishers; ·         Insurance Claims and Policy Processing Clerks; ·         Mail Clerks and Mail Machine Operators, Except Postal Service; ·         Office Clerks, General; ·         Office Machine Operators, Except Computer; ·         Proofreaders and Copy Markers; ·         Statistical Assistants; ·         Miscellaneous Office and Administrative Support Workers; ·         Bakers; ·         Butchers and Other Meat, Poultry and Fish Processing Workers; ·         Miscellaneous Food Processing Workers; ·         Ambulance Drivers and Attendants, Except Emergency Medical Technicians; ·         Bus Drivers; ·         Taxi Drivers and Chauffeurs. [1] It is likely that the Department of Labor will develop a model employer poster for this purpose.  [2] For instance, the anti-retaliation provisions and procedures described in the Act would be applicable to employees covered by a collective bargaining agreement effective prior to January 1st unless the collective bargaining agreement included language making the grievance procedure the exclusive avenue for resolution of sick leave disputes.   [3] Collective bargaining agreements that are not yet currently in force but are entered into prior to January 1, 2012 supersede contrary provisions in Public Act 11-52 until the post-January 1, 2012 expiration of the agreement.  http://www.sscc-law.com/newsresources-resources-item.php?item=93