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Can You Fire an Employee who Refuses to Participate in an Internal Investigation? The 2nd Circuit Says Yes.

When an employee is accused of misconduct, particularly when those allegations are criminal in nature, conducting an internal investigation is a best practice. But what is an organization to do when the alleged offender refuses to show up for an interview? May it go so far as to fire the employee, even if that means the employee loses out on benefits or other compensation? A recent case from the Second Circuit Court of Appeals says it can.

Dealing With Problem Employees—or Maybe Just Problems

We’d like to introduce Kim Levings, a management and leadership coach. What does this have to do with law? Most legal problems are personal—or personnel—problems gone to seed. Read Kim’s advice on how to deal with the weeds in your firm.

Case Exposes 12 Reasons to Have an Adequate Investigative Process

Recently, a court has allowed to go forward most of a case against the Roman Catholic Archbishop of San Francisco. The case alleges that the school did not investigate, refused to apply the ministerial exception defense, and did not find any formal religious decision-making process. What lessons can be learned here?

What Do I Do if Someone Files a False Report of Child Abuse?

In a perfect world, no one would file reports of child abuse unless they were really true. But it happens all the time—in fact, most of the reports that go to the Department of Human Services are unfounded. What should you do if a DHS caseworker shows up at your door?

Can an Attorney or Parent Advocate Add Value in a Special Education Dispute?

Often, parents come talk to us about their special education matter and end up deciding that it costs too much to hire an attorney. Often, we talk to parents in situations where a child's education has been wrecked for years, often beyond repair. We wish we could have helped them sooner. This raises questions. When do you need an attorney or parent advocate? When would an attorney add value to your child's life that outweighs the cost?

Early Warning Signs for Four Types of Disability in Small Children

ToddlerEvery parent dreams of what his or her child will grow up to be. Will my child become an NFL player, a concert pianist, or perhaps win the Nobel Prize? No parent ever wishes that his or her child would be born with a disability, even though the parent knows that dreams may not become reality.

ADA - Part 2: When Is Requiring Examination Permissible?

Now that the Sixth Circuit has said that requiring a worker to get psychological counseling is equivalent to requiring a medical examination under the ADA, the question is when requiring such an examination is permissible anyway.

ADA - Part 3: When is a Psychological Examination a Business Necessity?

Requiring an employee to undergo psychological counseling may violate Americans with Disabilities Act as previously discussed in Part 1 and Part 2. The Sixth Circuit just issued another opinion in favor of the ambulance driver, Kroll. The Sixth Circuit was not too happy with Kroll’s employer. How can you demonstrate that counseling is “job-related and consistent with business necessity”?

Four Points on Managing Ex-Employees and Corporate Data

A helpful recent white paper from Intermedia, based on research, discusses corporate data and how to manage it, particularly when employees leave the organization. Here are four important points from the paper to consider.

Financial Planning and Trusts for Special Needs at Buckley Law

John Buckley, a lawyer who is helping write the law in Colorado pertaining to trusts, graduated from the United States Air Force Academy and later Harvard Law School. He founded Buckley Law, for estate and asset protection planning in the Front Range.

What to Do After Your Child has been Diagnosed With a Disability

Special KidYou leave the doctor’s office more confused than when you walked in! You have more questions to ask, but your head is swimming. There is no way the doctor could be right—or could she? Being told that your child has a disability or developmental delay is hard news for any parent to take and involves a grieving process as well as tough decisions to make. Each child and his or her condition is unique; different disabilities take a different path. So what do you do now? How can you best help your child, whom you now know has special needs

Five Questions on IEPs that PEAK Parent Center Can Help You Answer: An Interview of Ms. Shirley Swope

Peak ParentAn Individualized Education Program (IEP) is required by federal statute for students with special needs in order to understand what accommodation, modifications, special education support and educational goals a specific child needs. The IEP process can be tedious, yet if you are equipped with the proper tools, is a maze that can be navigated. PEAK Parent Center is the Parent Training and Information Center (PTI) for the State of Colorado. It reports that the number one most-sought-after help is on the IEP for a child with disabilities.

Defining a Free Appropriate Public Education (FAPE)

EducationOur understanding of a Free Appropriate Public Education (FAPE) comes partly from statute and partly from case law. It brings parents both hope for what schools can provide for a child, and disappointment at the relatively low bar for education.

Four Questions to Consider When Your Child with Disabilities is Bullied

Bullied KidBullying is inevitable. Whether it occurs in toddlerhood when children are learning to use “safe hands,” or when older adolescents engage in cyber-bullying, most children will hit an adversarial situation at some point in their young lives. Parents struggle to ensure that children are equipped with the proper tools to navigate a hostile world. But what if you are the mother or father of a special needs child? The atmosphere quickly changes and is even more frightening. 

Can Parents Get in Trouble for Children's Behavior at School?

Children with behavioral, emotional, and mental disabilities sometimes behave badly and can even be violent. If this happens at school, are the parents responsible? Recently, a teacher injured by a child filed a lawsuit  against parents, alleging that Parents were responsible.

Access to Justice for My Child with Disabilities

kids hiding under bedInteractions between parents of children with disabilities and school districts can go wrong in so many ways:  refusal to evaluate a child; inadequate IEP; not carrying out the IEP; harassing or bullying the child; refusing access to extracurricular activities; and many more. This frustrates parents and students. When this happens, what can you do?

Initial Concerns in Setting up an Investigation

InvestigatorA good investigation requires many complex skills that include managing the investigation, doing interviews, and making credibility determinations. A credibility determination requires the investigative team to analyze the facts and decide the truth of the matter, sometimes with conflicting evidence. The investigation must be done skillfully and must consider legal issues.

Don’t Overlook Your Student’s Extracurricular Plan

extracurricular activitiesEven when schools put in place an IEP or Section 504 plan for your student, they may not address extracurricular access. This can make it hard for your student to participate in extracurricular events. After a government report found that students with disabilities do not have equal opportunities to participate in extracurricular activities, the Office for Civil Rights issued Section 504 guidance.

Coercing Strip-Searching of Children and Child Endangerment

camera phoneTelios Law represents a family in El Paso County that has sued the Board of County Commissioners and others in federal court, claiming that the County’s Department of Human Services violated constitutional rights when its caseworker ordered Y.C. Doe to pull down her pants for photographs of bruises from a spanking.

Don't Ask Me to Be Your Facebook Friend: New Social Media Law in Colorado

With the amount of information that exists about people on the web, naturally employers are tempted to check up on it, for purposes of hiring, evaluations, and firing.  Some employers take this to the level of requesting, even requiring, current or prospective employees to give their passwords or allow access onto their profiles. At least in Colorado, this practice must come to a screeching halt.

Has the School Properly Tested Your Child?

Getting a good evaluation for a child with disabilities can be a challenge. Mark C. Weber’s article, “All Areas of Suspected Disability,” published in 2013, provides valuable insight into the current state of the law on evaluating children with disabilities. If you have a child where an inadequate evaluation is an issue, this is worth reading. Courts have stepped into the area of tension between the requirements of IDEA and the low-level “reasonable benefit” standard we got from the Supreme Court, and usually held in favor of parents when children have not been evaluated properly.

Forbidding or Allowing Student Religious Speech

One challenge in figuring out what religious speech is permitted for students is that it depends on whether the school is trying to prevent the speech or allow it. A January 2013 Second Circuit case, A.M. v. Taconic Hills Central School District, gives some insight, though it is a summary order that is not precedential.

School Boards Need Constitutional Speech Policies for Students

Sometimes when school boards worry about endorsing religion, they go too far the other way. This seems to have happened when fourth-grade J.G. was not allowed to hand out his Easter Egg Hunt invitations. A Florida federal court granted a preliminary injunction in favor of his student speech in Gilio v. School Board of Hillsborough County on October 5, 2012. It reasoned that J.G. was likely to win his arguments that the school had violated his constitutional rights.

Good News in the Schoolhouse

 On August 29, 2012, the Eighth Circuit decided in favor of Child Evangelism Fellowship in Child Evangelism Fellowship v. Minneapolis Special Sch. Dist. No. 1.  It reversed the denial of CEF’s preliminary injunction where it had tried to stop a school district in Minnesota from limiting school facility access for a Good News Club.

ADA - Part 1: Monitoring Spiritual and Mental Health Without Violating the ADA

A new Sixth Circuit case, Kroll v. White Lake Ambulance Authority, decided on August 22, 2012, potentially raises a new set of problems for churches and mission organizations. Requiring employees to get mental health counseling is likely a violation of the Americans with Disabilities except in certain narrow circumstances. Religious organizations should consider what circumstances apply and be prepared. 

Do I Want a 504 Plan or an IEP?

Parents (and even educators) are often confused about the difference between a 504 plan and an IEP, and when each is appropriate. To choose between them, first the school and parents must find out whether the student has a disability as defined by statute. Then, they must decide what the school’s educational obligations are under each statute. The school must meet its obligations to provide a student with a disability the appropriate educational support. Finally, parents should know that their rights are different under each statute.

The Last Straw Better Not Be Religious

Nyaboga v. Evangelical Lutheran Good Samaritan Society, a recent unpublished cased from the Minnesota Court of Appeals, discusses whether an employee was fired for legitimate reasons or for religious reasons. Nyaboga was fired, then she sued over whether she was entitled to unemployment benefits. She had worked as a nurse, and asked not to be scheduled for Saturday shifts when she got more serious about her religious beliefs as a Seventh-Day Adventist. Her employer required her to find people to replace her on that shift (which the Court hinted might have been a separate problem, but was not discussed in the opinion). By the time Nyaboga lost her job, she had been tardy 58 times and warned repeatedly. She was warned that she would lose her job if she were absent one more time or tardy two more times.

Released-Time Offers Fresh Choices in Religious Education

Moss v. Spartanburg County School District Seven, a June 2012 Fourth Circuit case, expands possibilities for religious education for public school students. The main educational paradigms in the United States are public school, private school, and home school. Conventional wisdom holds that religious education takes place more effectively in the second two. But released-time is a viable option for religious education within the public school paradigm.

In released-time, a public school student is released from campus for a class period to take religious instruction off-campus. While such programs must meet certain requirements, when they do so, they are consistently held constitutional. Typically, the students do not get credit for classes, and at least one case, Lanner v. Wimmer, was critical of the credit option.

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