RISK MANAGEMENT Connie Wallis, ARM, CPSI Ryan G. Smith, Esq. NYSIR W EBSTER S ZANYI LLP

1. RISK MANAGEMENT Connie Wallis, ARM, CPSI Ryan G. Smith, Esq. NYSIR WEBSTER SZANYILLP

2. Points of Discussion • THE RISK MANAGEMENT PROCESS – PREVENTING INCIDENTS AND POST INCIDENT MANAGEMENT • RISK CONTROL TECHNIQUES FOR COMMON LIABILITY LOSS EXPOSURES • CLAIM HANDLING VARIABLES

3. Risk Management In School Operations • Responsibilities • Organizational culture • The challenges of shared services • Evaluating your risk management program

4. Common Liability loss exposures • Employment Liability • Bullying / Cyberbullying • Student-on-Student Violence • Student Travel

5. Employment Liability – EEOC Charge Statistics

6. EEOC Charge Statistics –Monetary Benefits ( in millions)

7. WHY THE INCREASES? • Layoffs • Negative changes in employment • Threats of employment reductions • Increased employee awareness • Aging workforce

8. RISK MANAGEMENT TECHNIQUES • Fair & legal interviewing • Clear policies • New employee and annual acknowledgement of policies • New employee and annual training

9. WHEN A COMPLAINT IS MADE • Workable complaint procedures • Fair investigation protocol • Anti-retaliation measures • Implement actions quickly • Look at the organizational culture

10. Bullying / cyberbullying Bullying can take many forms: • Physical, Verbal, Emotional, Cyberbullying • Each day 160,000 students in the US stay home for fear of being bullied at school • Bullying and cyberbullying can result in lawsuits for schools

11. 7 ways to address bullying at school 1. Recognize there is a problem 2. Identify who can be a bully 3. Encourage student witnesses to report 4. Encourage victims to report 5. Provide adequate monitoring in bully-prone areas 6. Collect evidence 7. Always act on reports and keep records

12. BULLYING / CYBERBULLYING • Know bullying and cyberbullying when you see it • Have strong policies in place • Training for all employees, students, parents and for your DASA Coordinators • Include technology to assure enforcement

13. INTERNET SAFETY – PROGRAM EVALUATION • Student Responsibilities • Acceptable use, cyberethics, netiquette • Administrator/Teacher Responsibilities • Curriculum, instructional alignment, assessment, professional development • District Responsibilities • Acceptable use policy, internet filtering & monitoring, confidentiality of information

14. Student Travel • Assaults, including student-on-student • Injuries from athletics, sports, recreational activities • Unacceptable behavior, especially on overnight trips • Reputation risk

15. Risk Control • Emergency Planning • Transportation Issues • Pre-Trip • During Trip • Post-Trip • Chaperones

16. Student Travel – Typical Allegations • Failure to supervise • Not enforcing rules of conduct • Not warning of hazards • Harlem Drowning Case

17. Claim handling variables • Professional, competent media relations spokesperson • Reporting all incidents – trend identification • Install Claims Kit on desktop of all district leaders • Provide Incident Investigation Training to all district leaders

18. Claim handling variables • DOCUMENTATION, DOCUMENTATION, DOCUMENTATION!! • Current policies, policy acknowledgement forms, training records, inspections, maintenance records, photographs, incident reports, statements

20. POINTS OF DISCUSSION • HOW DOES LIABILITY ARISE IN THE CONTEXT OF STUDENT BULLYING/HARASSMENT? • IS THERE ANYTHING WE CAN DO TO AVOID EMPLOYMENT LIABILITY OR BETTER DEFEND AGAINST EMPLOYMENT-RELATED CLAIMS? • COMMON EMPLOYMENT CLAIMS • THE LITIGATION PROCESS

21. BULLYING & HARASSMENT • LIABILITY FREQUENTLY HINGES ON WHETHER THE DISTRICT ACTED WITH DELIBERATE INDIFFERENCE • WHAT IS DELIBERATE INDIFFERENCE? • CLEARLY UNREASONABLE IN LIGHT OF KNOWN CIRCUMSTANCES • CAUSES THE STUDENT TO UNDERGO HARASSMENT OR MAKE THE STUDENT VULNERABLE TO IT • A FAILURE TO RESPOND, RESPONDING ONLY AFTER LENGTHY AND UNJUSTIFIED DELAY, OR A RESPONSE THAT AMOUNTS TO DELIBERATE INDIFFERENCE

22. BULLYING & HARASSMENT: RECENT CASE LAW • ZENO v. PINE PLAINS CSD, U.S. COURT OF APPEALS, SECOND CIRCUIT (DECIDED DECEMBER 3, 2012) • SEVERE RACIAL HARASSMENT (VERBAL AND PHYSICAL) OVER APPROXIMATELY 3½ YEARS • DISTRICT DISCIPLINED OFFENDING STUDENTS BUT THE HARASSMENT CONTINUED • SECOND CIRCUIT AFFIRMED REDUCED JURY AWARD OF $1 MILLION, PLUS COSTS AND ATTORNEYS’ FEES

23. BULLYING & HARASSMENT: RECENT CASE LAW • PREUSSER v. TACONIC HILLS CSD, U.S. DISTRICT COURT, NORTHERN DISTRICT OF NEW YORK (DECIDED JANUARY 17, 2013) • EPISODIC TEASING – LESS THAN FIVE SPECIFIC INSTANCES OF ALLEGED RACIALLY RELATED NAME-CALLING OVER THREE YEARS • NO PHYSICALLY THREATENING CONDUCT • DISTRICT RESPONDED APPROPRIATELY • PLAINTIFF FAILED TO ESTABLISH THAT ENVIRONMENT WAS PERMEATED WITH RACIAL HOSTILITY, OR THAT SCHOOL ACTED WITH DELIBERATE INDIFFERENCE • SUMMARY JUDGMENT GRANTED TO THE SCHOOL DISTRICT

24. BULLYING & HARASSMENT: RECENT CASE LAW • P.W. v. FAIRPORT CSD, U.S. DISTRICT COURT, WESTERN DISTRICT OF NEW YORK (DECIDED FEBRUARY 25, 2013) • ALLEGED VERBAL AND PHYSICAL HARASSMENT OVER MULTIPLE SCHOOL YEARS • DISTRICT ALLEGEDLY FAILED TO RESPOND TO COMPLAINTS IN ADEQUATE FASHION • INFANT PLAINTIFF TRANSFERS SCHOOLS AND UTLIMATELY LEAVES SCHOOL, ALLEGEDLY DUE TO THE BULLYING • HELD THAT THE DISTRICT’s ALLEGED LACK OF RESPONSE TO COMPLAINTS OF PHYSICAL SEXUAL HARASSMENT RAISED QUESTION AS TO WHETHER THE DISTRICT ACTED WITH DELIBERATE INDIFFERENCE • TITLE IX CLAIM SURVIVED MOTION TO DISMISS

25. BULLYING & HARASSMENT: PRACTICE POINTERS • INVESTIGATE & DOCUMENT • REMEDIAL MEASURES • FOLLOW INTERNAL POLICIES & REGULATIONS

26. Employment liability • SIMPLE INQUIRIES THAT MAY HELP AVOID EMPLOYMENT LIABILITY: • COULD YOU JUSTIFY THE DECISION TO AN OBJECTIVE THIRD PARTY? • IF YOU WERE THE EMPLOYEE, WOULD YOU BE SHOCKED BY THE DECISION? • CAN YOU JUSTIFY THE DECISION BASED SOLELY ON DOCUMENTARY EVIDENCE? • WOULD YOU SAY THE SAME THING IF YOU WERE BEING RECORDED?

27. Employment liability DOCUMENT EVERYTHING YOU CAN!! • VERBAL COMMUNICATIONS • MAINTAIN A SUPERVISORY FILE • EVALUATIONS

28. Employment liability:SPECIFIC CLAIMS • THE AMERICANS WITH DISABILITIES ACT • THE AMENDMENTS ACT OF 2008 BROADENED THE DEFINITION OF “DISABILITY” • EMPLOYEES MAY NOT NEED TO SPECIFICALLY REQUEST A REASONABLE ACCOMMODATION • ENGAGE IN THE INTERACTIVE PROCESS

29. Employment liability:SPECIFIC CLAIMS • FAMILY AND MEDICAL LEAVE ACT • ENSURE THAT THE FMLA IS BEING ADMINISTERED PROPERLY • THE FMLA PROVIDES FOR INTERMITTENT LEAVE • SPECIAL RULES APPLY TO INSTRUCTIONAL EMPLOYEES (see 29 C.F.R. §§ 825.600-604)

30. Employment liability:SPECIFIC CLAIMS • RETALIATION • PROTECTED ACTIVITY • IMMUNE FROM ADVERSE ACTION? • HYPOTHETICAL

31. Litigation management • WHEN YOU FIRST RECEIVE A CLAIM OR LAWSUIT… • ALERT YOUR INSURANCE COMPANY AND COUNSEL • COLLECT AND PRESERVE • LITIGATION HOLD • CEASE AUTOMATIC DELETION POLICIES OR PRACTICES • DO NOT MIX LITIGATION-RELATED MATERIALS WITH THE CONTENTS OF A STUDENT OR EMPLOYEE FILE

32. Litigation management • HOW DOES COUNSEL APPROACH A LAWSUIT? • LITIGATION TIMELINE • STATE COURT • FEDERAL COURT

33. RECENT DECISIONS OF THE UNITED STATES SUPREME COURT • UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER v. NASSAR, decided June 24, 2013 • ADOPTED EMPLOYER-FRIENDLY“BUT-FOR” CAUSATION STANDARD FOR TITLE VII RETALIATION CLAIMS • VANCE v. BALL STATE UNIVERSITY, decided June 24, 2013 • ADOPTED NARROW DEFINITION OF “SUPERVISOR”

34. QUESTIONS?