EMPLOYMENT LAW ISSUES FOR CHARTER SCHOOL ADMINISTRATORS

Transcription

1 ATLANTIC LEGAL S GUIDE TO EMPLOYMENT LAW ISSUES FOR CHARTER SCHOOL ADMINISTRATORS Colorado, New Mexico, Utah and Wyoming Jackson Lewis LLP Atlantic Legal Foundation

2 ATLANTIC LEGAL S GUIDE TO EMPLOYMENT LAW ISSUES FOR CHARTER SCHOOL ADMINISTRATORS Colorado, New Mexico, Utah and Wyoming Jackson Lewis LLP Atlantic Legal Foundation 2039 Palmer Avenue Larchmont, NY 10583

3 Copyright 2009 by Jackson Lewis LLP All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, or any information storage and retrieval system now known or to be invented, without permission in writing from the publisher, except by a reviewer who wished to quote brief passages in connection with a review written for inclusion in a magazine, newspaper, or broadcast. Atlantic Legal Foundation invites and welcomes requests for reproduction and retransmission of this publication. Contact: This guide was prepared by the Denver, Colorado office of Jackson Lewis LLP 1050 Seventeenth Street Suite 2450 Denver, Co (303) Mickey Silberman, Managing Partner Cover and interior design by Studio Grafo IMPORTANT NOTICE This guide is intended for information and educational purposes only. It is provided with the understanding that the publisher, authors, editors, and funders are not engaged in rendering legal or other professional advice or service. The facts, views and analysis expressed in this guide are not offered for the purposes of rendering any particular legal advice in any form or matter. Law, regulations and their interpretation are continually changing. The specific application of any law, regulation or policy to any particular fact, situation or problem occurring with any employer should always be reviewed with legal counsel or other professional or practitioner in the particular area who is knowledgeable about applicable federal and state law and regulations and their interpretation. Although every effort has been made to ensure the accuracy and completeness of this information, the publishers, authors, editors and funders of this guide cannot be responsible for any errors or omissions, or for the description of any laws or regulations, the courts or agencies interpretation or application of the laws or regulations or for changes in any laws or regulations described.

4 Contents Introduction i I. The Employment Relationship: The Basics 1 II. Employees: Recruiting, Selecting, And Hiring 5 III. Respecting All Employees 9 IV. Employee Privacy Rights In The Workplace 16 V. Compensation 19 VI. Evaluating The Employment Relationship: Reviews, Discipline, Termination 21 About Jackson Lewis LLP 26 About the Atlantic Legal Foundation 28

5 ATLANTIC LEGAL S GUIDE TO EMPLOYMENT LAW ISSUES FOR CHARTER SCHOOL ADMINISTRATORS Colorado, New Mexico, Utah and Wyoming Introduction We all understand that charter school leaders are held accountable and that the success of their efforts are watched closely by parents, authorizers, politicians and by others in the education establishment who may be threatened by the charter schools movement. But not to be forgotten is the school s responsibility to members of its own staff. Like it or not, school administrators need to comply with a host of regulations governing the employer-employee relationship and the failure to comply even unwittingly can interfere with a harmonious relationship and even lead to government intervention or civil litigation. The consequences flowing from a failure to comply with basic work-place rules makes it imperative that charter school leaders have a solid understanding of them; and, this concise, reader-friendly review prepared by Jackson Lewis LLP, a prominent national law firm specializing in employment law, is especially welcome. This guide for Colorado and adjacent states is part of a series published by Atlantic Legal Foundation designed to assist school leaders in building and maintaining innovative, successful charter schools. William H. Slattery President Atlantic Legal Foundation i

6 The Employment Relationship: IThe Basics The Basic Rule: Employment At-Will At-will employment is a legal concept that generally allows either the employer or the employee to end the employment relationship for any legally permissible reason, at any time. In Colorado, Utah, New Mexico and Wyoming employees are considered at-will unless there is an employment contract for a specific period of time. Can An At-Will Employee Really Be Terminated For Any Reason? No. At-will employment is not absolute. An at-will employee cannot be terminated for an illegal reason, such as discrimination based on race, color, creed, religion, sex, national origin, sexual orientation, marital status, veteran status, political affiliation, disability or age. Similarly, employees cannot be terminated for reasons that violate public policy, including applying for workers compensation or refusing to participate in illegal activities. Courts can also limit the at-will rule by implying a contract based on actions taken by the employer. Courts may find that the at-will doctrine does not apply if an employer has done or said something that reasonably gives employees the impression that employment is not atwill. For example, if an employer distributes an employee handbook that says employees can only be terminated for specific reasons, or after a series of disciplinary steps, this may be seen as contradicting employment at-will and creating a contract limiting an employer s freedom to act. Courts may also imply a contract when an employer makes verbal promises to an employee about job security. Employment Contracts Because the school relies on teachers for the entire school year, you may want to consider preparing employment contracts for your teachers to ensure teachers commit to staying with 1

7 the school through the end of the school year. In exchange, the school may agree not to terminate the teacher during the school year except for misconduct. The Bottom Line: When To Consult An Attorney The rule sounds easy: either party can end the relationship for any legally permissible reason, at any time. However, at-will employment is not necessarily a simple concept. Remember, at-will only applies when there is no contract for a specific period of employment. Even when an employee does not have a contract of employment, employees may still raise claims of implied contract, public policy, or retaliation. Before terminating employees, consider whether there are documents supporting employee misconduct or poor performance, whether the affected employee falls into a protected classification, or whether the affected employee has previously complained of harassment or discrimination. All of these considerations are discussed in more detail in subsequent chapters. If you are unsure whether at-will employment allows you to terminate in a specific situation you should consult an attorney. Similarly, you should consult an attorney before drafting a form employment contract. Indeed, it is a good idea to review all documentation covering employment with counsel on a periodic basis. Communicating Expectations: Employee Handbooks Handbooks Are Helpful Just like an employment contract, an employee handbook can be a source of information about the terms of the employment relationship. Employers are not required by law to provide handbooks, but your school should strongly consider using one. There are many benefits to publishing an employee handbook. A well-written handbook saves time, improves employee morale, prevents disagreement, helps employees understand policies, and can even prevent litigation. A handbook provides a uniform way to communicate with employees about your school s overall mission and philosophy. Most importantly, the handbook outlines school policies and procedures. Because handbooks contain important information, your school needs to keep the handbook updated. Do not assume that your handbook needs to be all inclusive. Including a policy that you do not enforce is worse than not including a policy at all. For that reason, you should stick to the basics, which are summarized below: 2

8 What s In A Handbook? Disclaimer that handbook is not a contract Mission statement Equal Employment Opportunity (EEO) statement Anti-harassment policies Complaint and problem solving procedure Employee responsibilities Leaves of absence policies Discipline policies What To Avoid: Handbooks As Contracts Overall, handbooks are a helpful tool for employers. However, if not prepared properly, a handbook can create an implied contract that changes the at-will relationship. Therefore, you should avoid handbook language that could be interpreted as giving employees protection from termination you did not intend. One step you can take to prevent turning a handbook into a potential contract is to include a disclaimer. Both the placement and the content of the disclaimer are important. The disclaimer should be obvious and appear on the first page; the wording should be clear and easy to understand. A disclaimer usually states that the policies outlined in the handbook do not create contractual rights. The disclaimer should also note that the handbook can be changed at any time and should include practices as well as formal policies. Sample Disclaimer: THE CONTENTS OF THIS HANDBOOK ARE GUIDELINES ONLY AND SUPERSEDE ANY PRIOR HANDBOOK. NEITHER THIS HANDBOOK NOR ANY OTHER SCHOOL GUIDELINE, POLICY OR PRACTICE CREATES AN EMPLOYMENT CONTRACT. THE SCHOOL HAS THE RIGHT, WITH OR WITHOUT NOTICE, TO CHANGE ANY OF ITS GUIDELINES, POLICIES, PRACTICES, WORKING CONDITIONS OR BENEFITS AT ANY TIME. 3

9 NO ONE IS AUTHORIZED TO PROVIDE ANY EMPLOYEE WITH AN EMPLOYMENT CONTRACT OR SPECIAL ARRANGEMENT CONCERNING TERMS OR CONDITIONS OF EMPLOYMENT UNLESS THE CONTRACT OR ARRANGEMENT IS IN WRITING AND SIGNED BY [INSERT SCHOOL OFFICIAL HERE]. While a disclaimer is one way to help ensure that your handbook does not create an employment contract, it is not a guarantee. If other parts of the handbook are inconsistent with the disclaimer, courts may still find a contract. Given the importance of a well drafted and individualized handbook, each school should seek advice and assistance from legal counsel when creating these documents. 4

10 Recruiting, Selecting, And Hiring IIEmployees: Recruiting: The Job Description Although job descriptions are not required by law they are beneficial to you and your employees. An effective job description should be clear and concise, and accurately reflect your school s individual needs. The description needs to identify the main function of the position, the general responsibilities of the job, and the necessary qualifications, including essential job functions. Also, all job descriptions should include a statement that your school is an equal opportunity employer. A Job Description Should Include: Job title Organization/reporting information Job summary statement Purpose and objective of the position Job responsibilities Working conditions Qualifications/essential functions/requirements/skills Equal Opportunity Employer statement Selecting: Job Applications and Interviews Selecting employees normally involves an application and interview. The application and interview are both chances to learn about potential employees. The process usually starts with a prospective employee filling out an application. Your school should make sure that the application is up to date. Most importantly, check to see that the application only asks for information that is directly related to the job. 5

11 An interview can help you get a better sense of an applicant s qualifications and experience. However, just like an application, only ask interview questions that are relevant to the position. Also, if you interview multiple people for one position, ask the same interview questions of each applicant. While you certainly want to learn enough about a prospective employee to make an informed decision, some subjects are not appropriate to discuss. You should avoid the following topics in both your application form and your interview questions: Race, ethnicity, national origin Gender Age Disability Religion Sexual orientation Union or organization membership Military status Arrest record Financial status, credit record Marital status Parental status, plans to have children Physical/mental health Activities outside of work Before you finish an interview, take time to tell the applicant about any other requirements that must be met. These might include reference checks, a criminal background check, or drug testing. Use the job description to guide this discussion. If you encounter an applicant that requires an accommodation or if you have questions about recruiting or hiring, you should consult with legal counsel to ensure you are in compliance with the law. Hiring: Job Offers Offer letters are often used to confirm offers of employment. The offer letter should list the position, pay, job duties, and any similar job information. You should also inform the applicant 6

12 whether the position is at-will or subject to an employment contract. You should consult legal counsel when drafting your form offer letter. In the offer letter, you also need to tell the applicant if the offer is conditioned on meeting other requirements such as a reference or background check. Sample Offer Letter Dear [Applicant]: To confirm our previous conversations, I am pleased to offer you the position of [job title] with [school name]. The following are the terms that we discussed and which I present to you for your review and consideration: Your rate of pay will be [amount]. Your benefits will include [benefits, vacation, etc.]. Your duties generally will include [brief job description]. You agree to follow all school policies and procedures, including but not limited to those set forth in the employee handbook. This offer is contingent upon our receipt of appropriate [background check, drug screening, etc.] results. [This offer letter shall not be construed as a guarantee of employment for any definite term, and your employment with [school name] will be at-will, which means you or the school may end the employment relationship at any time and for any lawful reason or no reason, with or without notice.] or [The terms of your employment will be subject to an employment contract.] We hope you will accept this offer to become part of the [school name] team. If you accept this offer on the terms set forth above, please sign and date the copy of this letter which is enclosed and return it to the school. If you have any questions, or if I can help in any way, please call me. Sincerely yours, [appropriate school individual] 7

13 I have read and agree to the conditions set forth above. I understand that my employment with the school is [at-will and this offer letter shall not be construed as a guarantee of employment for a definite term] or [subject to the terms of an employment agreement]. Signature Date Post Employment Verification: Within 20 days after hiring a new employee, Colorado employers must complete and retain an affirmation that the employer has 1) examined the legal work status of each newly hired employee; 2) retained copies of the documents examined as required by 8 U.S.C. 1324(a); 3) has not altered the employee s identification documents; and 4) has not knowingly hired an unauthorized alien. Copies of the authorization can be found at: Although other states do not require employers to complete the affirmation, schools that are located outside Colorado should also check each employee s eligibility to work in the U.S. and retain copies of each employee s documentation pursuant to the requirements of Form I-9. Document Retention Various federal and state laws require employers and prospective employers to retain applications and other personnel records. Requirements vary from six months to six years. As a general rule, the following document retention time-frames apply: Document Retention Applications must be retained for at least one year. This applies even if the applicant is not hired. Personnel records must be retained for at least three years. Tax and unemployment records must be retained for at least five years. Pay records must be retained for at least three years. I-9 documents must be retained for at least three years. Employee benefits and 401K plan documents must be retained for at least six years. 8

14 III Respecting All Employees Equal Employment Opportunity Employer The school should implement an equal employment opportunity policy which prohibits unlawful discrimination in employment, hiring and all employment related decisions. Sample Equal Employment Opportunity Policy We want to maintain an employee relations climate which promotes maximum personal development and achievement. We are an equal opportunity employer and do not discriminate on the bases of age, race, color, national origin, sex, religion, creed, veteran status, disability, sexual orientation or any other characteristic prohibited by law. Our management is dedicated to ensuring the fulfillment of this policy with respect to hiring, selection for training, promotion, transfer, layoff, termination, leaves of absence, rates of pay or any other term or condition of employment. When necessary, we will reasonably accommodate employees and applicants with disabilities and with religious requirements necessitating accommodation. We expect everyone to show understanding and consideration to fellow employees and to respect and observe this policy. Posting Requirements Your school should post information concerning equal employment opportunity, the Family Medical Leave Act, the Americans with Disabilities Act, workers compensation, OSHA, the minimum wage, payday, unemployment insurance, and USERRA (the military employment act) in a common space, accessible by all employees, such as a break room. Many posters are commercially available and available from your state s Department of Labor. In New Mexico, the poster must be displayed in both English and Spanish. 9

15 Protected Classes Race, Color, Religion, Sex, National Origin Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against individuals because of: race color religion sex national origin This law protects employees in the areas of hiring and pay, as well as the terms, conditions, and privileges of employment. Also, under this law employers cannot limit, segregate, or classify employees based on these protected characteristics. Like Title VII, the Equal Pay Act prohibits sex discrimination in the workplace. This law requires that men and women receive the same wage for the same work. The law applies in situations where jobs require equal skill, effort, and responsibility, and are performed under similar working conditions. Of course, this law does not mean that every school employee receives the same salary teachers can be paid different amounts if the discrepancy is based on a factor (seniority, for example) other than sex. Age The Age Discrimination in Employment Act prohibits discrimination because of age. This law generally protects employees 40 years of age and over. As with Title VII, a school cannot discriminate through hiring, pay, terms and conditions of employment, or privileges. Employers also cannot limit, segregate, or classify workers in a way that deprives them of opportunities because of age. 10

16 Disability The Americans with Disabilities Act (ADA) is a federal law designed to prevent discrimination on the basis of disability. If an employee (or applicant) meets all job requirements and can perform the essential job functions with or without reasonable accommodation the school cannot discriminate against the person because of a disability. Disability Defined Under The ADA The ADA protects individuals from discrimination where: 1. An individual has a physical or mental impairment that substantially limits one or more major life activities (i.e., prevents or restricts the individual from doing activities that are of central importance to most people s daily lives) 2. An individual has a record of such an impairment 3. An individual is regarded as having such impairment. Both physical conditions and mental impairments are disabilities under the ADA. Keep in mind that mental impairments and physical conditions which are not obvious may also be covered by the law. On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA) which came into effect on January 1, The ADAAA is expected to expand the types of impairments that qualify as disabilities under the ADA. How Your School Can Comply With The ADA If an employee has a disability that meets the definitions under the ADA, the employee usually needs to provide documentation to the school. Your school can request it from an appropriate professional, but may never ask for information unrelated to the disability. Any documents the school receives must remain confidential. Once your school has determined that an employee has a disability and needs an accommodation, you should work closely with the employee to attempt to make the change. Under the ADA, employers must accommodate qualified individuals with disabilities unless doing so would be significantly costly or difficult. 11

17 Serious Health Condition New Mexico prohibits discrimination against employees and job applicants based on serious medical condition. New Mexico defines serious medical condition as a serious health-related impairment that is not otherwise considered a handicap or disability, which substantially limits one or more of an individual s major life activities. Family Status/ Health Conditions The Family and Medical Leave Act (FMLA) allows employees to take time off of work for family or medical reasons. Employees cannot be discriminated against for missing work, which means they must get their original job (or equivalent job) back when they return. The law applies to all public agencies and any private employer. In either case, an employee is eligible to take FMLA leave if: (1) They have worked for their employer for 1 year (2) They have worked at least 1, 250 hours over the last 12 months, and (3) They work at a location where at least 50 employees are employed, or are employed by the employer within 75 miles of the job location. The law gives employees up to 12 weeks of unpaid leave in a year. Employees can take FMLA leave for the following reasons: (1) an employee takes leave for the birth of a child or to care for the newborn child; (2) an adopted or foster child is placed with an employee; (3) an employee leaves to care for an immediate family member with a health condition; or (4) an employee is unable to work because of a serious health condition. When the leave is related to a health condition, your school can ask for documentation of the condition. You must allow the employee 15 days to get the information from a health care provider. The FMLA was amended in 2008 to permit a spouse, son, daughter, parent, or next of kin to take up to 26 weeks of leave to care for a member of the Armed Services who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness suffered while on active military duty. The amendment further provides 12 weeks of leave because of any qualifying exigency arising out of the fact that a covered employee s spouse, child or parent is on or has been called to active duty in the Armed Forces. The Department of Labor recently released new regulations concerning the FMLA. You should review these regulations or consult with an attorney before implementing any FMLA policies. 12

18 If an employee has taken time off of work under the FMLA, your school should keep up communication with the individual. Consider sending this letter to an employee on FMLA leave 2 to 3 weeks before the leave expires. Sample FMLA Letter Dear [employee s name]: You have been on a leave of absence since [date leave began]. Your FMLA leave will expire on [date]. The position you held immediately before your leave was [name of position]. Please let us know whether you will be returning to work on or before [date]. If you are not able to return to work at that time, please let us know if and when you expect to return to work. We look forward to hearing from you. Sincerely, [school official] Pregnancy/Adoption In Colorado, any maternity or paternity leave the school provides to biological parents following the birth of a child must also be available to employees adopting a child. Any other benefits provided by the school, such as job guarantee or pay, should be available to both adoptive and biological parents on an equal basis. Utah specifically prohibits discrimination based on pregnancy, childbirth or pregnancyrelated conditions. Please note, however, that any pregnancy or childbirth related conditions may also fall under the umbrella of Title VII s prohibition against gender discrimination discussed above. Sexual Orientation Colorado and New Mexico prohibit discrimination against employees and job applicants based on sexual orientation or gender identity. 13

19 Smoking New Mexico and Wyoming prohibit discrimination against employees and job applicants on the basis of tobacco use/smoking status. Anti-Harassment Policy Your school, like all employers, has a responsibility to make sure that each employee is treated with respect. While following all federal and state laws is important, every school also needs to have an anti-harassment policy in place. With an effective policy you can create a productive work environment and increase employee morale. Following the policy can also help limit the school s legal liability. Your anti-harassment policy should include: A statement prohibiting all forms of harassment A definition of harassment, with examples of prohibited conduct A complaint and investigation procedure A disciplinary procedure A no retaliation statement Of course, simply having a written anti-harassment policy is not enough. For the policy to actually work, you must take all complaints seriously and start investigations as soon as possible. If harassment has taken place, a disciplinary procedure (outlined in the policy) must be followed in every case. Sample Anti-Harassment Policy We prohibit harassment on the basis of age, race, color, national origin, religion, disability, sex, sexual orientation or other protected characteristic. While it is not easy to define precisely what harassment on any of these bases is, it certainly includes slurs, epithets, threats, derogatory comments and unwelcome jokes, sexual advances, requests for sexual favors and other verbal or physical conduct such as uninvited touching or sexually-related comments. The purpose of this policy is not to regulate our employees personal morality. It is to assure that in the workplace, each employee is able to accomplish his or her job without being subjected to harassment. 14

20 Any employee who feels that he or she has been subjected to harassment should immediately report the matter to his or her supervisor, or any other member of administration with whom he or she feels comfortable. The greatest discretion will be utilized in investigating and, where appropriate, remedying improper conduct. There will be no retaliation against any employee who, in good faith, seeks resolution under this policy. Any violation of this policy will result in discipline, up to and including discharge. 15

21 IVEmployee Privacy Rights In The Workplace Regulation Of Computer And Internet Use Computer and internet use policies should inform employees that the school has guidelines for computer and internet use, and state that the computer systems are school property and can only be used for school purposes. Your school may also want to monitor how employees are using computers. Generally, you should only monitor an individual employee when you have a reason to suspect that inappropriate activity is taking place. Sample Electronic Communications Policy The School provides computers, electronic data storage, Internet services, electronic mail ( ) and voice mail communications systems (referred to throughout this policy as the School s communication systems ) as important tools to support the School s business and assist employees in performing their job responsibilities. It is the responsibility of every employee to ensure the School s communication systems are used for authorized school purposes only and in a fashion that does not improperly disclose confidential, sensitive or proprietary information to unauthorized individuals. Any communications in which the School s communications systems are used, including correspondence such as , constitute School property. The School s communication systems are to be used for business-related purposes only. Limited personal use is permissible on a reasonable basis. Any unauthorized use of the School s communication systems is strictly prohibited. Unauthorized use includes, but is not limited to: Any communications or use which violates the School s non-solicitation, equal employment 16

22 opportunity, harassment, or non-retaliation policies or any other School policy or procedure. Utilizing or accessing the School s communication systems without proper authorization. Disabling or otherwise interfering with the School s communication security or data protections systems. Using the School s communication system to disclose confidential, sensitive, or proprietary information to unauthorized individuals. The School reserves the right to monitor, audit, access, disclose and/or review any use of its communication system in its sole discretion, in the ordinary course of business. Employees should not consider the School s communications systems as private. Please note, the use of a password and or delete function does not restrict or in any way alter the School s right and ability to monitor, audit, access, disclose and/or review the use of its communication systems in the School s discretion in the ordinary course of business. Employees should also be aware that the School may, under certain circumstances, be compelled to monitor, audit, access, disclose and/or review the use of its communication systems. During the course of employment with the School, employees may be provided with passwords, entry codes and/or access to the School s communication systems. Employees are strictly prohibited from disclosing these passwords, or entry codes to any person without prior written authorization. Employees are also prohibited from providing any unauthorized individuals with access to the School s communication systems. Additionally, employees are prohibited from accessing the School s communication systems without proper authorization. Employees are also prohibited from establishing intranet, Internet or other data connections without prior written authorization. Any employee who violates this policy will be subject to immediate disciplinary action up to and including discharge. Drug-free workplace Federal grant recipients or organizations with federal contracts in excess of $100,000 must establish drug free policies under the Drug-Free Workplace Act. Contact an attorney if you intend to test employees for drug use or develop a drug free workplace policy. 17

23 Union activity As public employers, your state s public employee relations laws likely apply to employee unionization. It s best to seek legal advice if you notice employees discussing unionization or if you plan to talk about unions with employees. 18

24 VCompensation Compensating Employees Minimum age And Overtime Requirements The Fair Labor Standards Act (FLSA) is a federal law that requires employers to pay employees a minimum wage and overtime when necessary. While the FLSA is a federal law mandating wage and hour requirements, state laws may also address these same areas. When the FLSA and a state law both apply, your school must follow whichever law sets higher standards. As of July 24, 2008, the federal minimum wage is $6.55 per hour, and will increase to $7.25 per hour on July 24, The minimum wage in Colorado is $7.02 per hour and will increase to $7.28 per hour on January 1, The minimum wage in New Mexico is $6.50 per hour and will increase to $7.50 per hour on January 1, The minimum wage in Utah currently mirrors the federal minimum wage. The minimum wage in Wyoming is $5.15 per hour. In addition to paying employees the minimum wage, the FLSA also requires that employees be paid overtime for each hour worked in excess of 40 hours a week. Overtime is one and one-half times the regular rate of pay. The overtime pay requirement applies to each week of work. Employees who work more than 40 hours in one week must be paid overtime regardless of how many hours they worked in other weeks. For example, if an employee works 50 hours one week and 30 hours the next, you must compensate the employee overtime for 10 hours in the first week. 19

25 Exemptions Some individual salaried employees are considered exempt from these rules. The FLSA lists certain jobs where the minimum wage or overtime regulations (or both) are not required. The FLSA exempts professional and administrative employees from minimum wage and overtime payments. This exemption includes teachers and academic administrative personnel in elementary and secondary schools. 20

26 VI Evaluating The Employment Relationship: Reviews, Discipline, Termination Performance Reviews Many employers dread having to conduct performance reviews, but these evaluations are important for your school. Performance reviews are a chance to provide positive feedback to employees who are doing well, and give you the opportunity to help employees who are not meeting expectations. You should try to think of these reviews as a helpful communication tool. Performance reviews should be done at least once a year with every employee. Conduct all reviews in private, and make sure you have scheduled enough time with each employee. When the meeting is finished, have the employee sign the review. Employees With Poor Reviews: Performance Improvement Plans When an employee is not performing adequately, your school should create a performance improvement plan for the individual employee. First, inform the employee of the problem be specific and detailed when describing the areas that need work. Next, explain to the employee how he or she can improve performance. It is also important to tell the employee what time frame will be used to evaluate improvement (the employee will be reevaluated in 30 days, for example). Lastly, let the employee know that the school may take further action if performance does not improve. Discipline: When Employees Don t Follow The Rules Your school should have a discipline policy detailing what happens when an employee violates a school policy. Of course, it is important to always follow the policy, but that does not mean that discipline will always look the same; the policy should note that each situation will be evaluated individually and that no employee is guaranteed a particular procedure before termination. 21

27 When creating a policy, your school should consider progressive discipline. Progressive discipline means that the school takes a step-by-step approach to dealing with employee misconduct. Basically, progressive discipline allows your school to work with employees to correct problematic behavior before termination. Steps in the progressive disciplinary process could include: oral warning, written warning, and termination. Sample Progressive Discipline Policy School employees should behave in a manner that is conducive to the efficient operation of the school. Employees are expected to abide by all rules, regulations, policies, procedures and instructions of the school. To that end, all employees engaging in unacceptable conduct may be subject to discipline, up to and including termination. Each employee will be treated and respected as an individual. For this reason, an employee s conduct and any disciplinary action will be reviewed on a case-by-case basis. Seriousness of the infraction, an employee s length of service, work record and prior conduct will all be considered in determining the proper action to be taken. The following steps may be taken by the school in response to acts of employee misconduct, however, a violation of any school rule or policy is sufficient grounds for disciplinary action up to and including termination. Step One: Oral warning Step Two: Written warning Step Three: Termination Conduct which may result in disciplinary action includes, but is in no way limited to participation in the following: Discrimination or harassment Possession/use of alcohol/illegal drugs on school property or school time Use of foul or abusive language Insubordination Unauthorized disclosure of confidential or sensitive information Violation of safety and health policies and practices Excessive unauthorized absenteeism or tardiness 22

28 Unsatisfactory performance Inappropriate conduct detrimental to the image of the school Violating any state or federal law while on school premises or school time Violation of any school rule or policy The school is not required to give any particular level of discipline prior to discharging an employee. Termination: Ending The Employment Relationship Once the decision has been made to terminate an employee, your school must act carefully to limit liability. Make sure that the reason is legitimate and documented in some way. For example, if an employee has been unable to meet job requirements you should have copies of the performance reviews or other information documenting this problem. If you are terminating an employee who has an employment contract, be sure the reason for termination is sufficient under the contractual provisions. Before Terminating an Employee, Ask: Were any representations made to suggest employment is not at-will? What does the contract or job offer say about termination? Could this termination violate any public policy? Could it appear that the employee s protected status may have influenced the decision? Has there been a thorough, documented investigation? Has the employee been able to give his/her side of the story? Is this termination consistent with the actions previously taken in similar situations? If the employee is not subject to an employment contract, you are not required by law to explain the reason for termination. If you do give at-will employees a reason for termination, be specific and refer to the policy manual or job description, if applicable. If you are terminating an employee who has an employment contract, be sure the termination is warranted under the terms of the contract. As a general rule, it is best to contact legal counsel before (not after) terminating an employee. The Exit Interview Exit interviews can provide employers with useful information. Exit interviews can be conducted in person or through a letter. When employees choose to leave, ask them about their overall 23

29 experience at the school, reasons for leaving, and suggestions for improving the school. Your school can use this information to make positive changes to the school and prevent turnover. After Termination: What Your School Needs To Do Responsibilities arise once you decide to terminate an employee. Immediately after termination, the school must record the action in the employee s file; you must also pay any remaining wages to the employee. There are communication issues to be aware of as well, since you may be asked questions by other employees or by employers who are considering hiring your former employee. How Should The School Document The Termination? When an employee is terminated or leaves the school, keep a record of this action. Place this record in the employee s file. Keep this documentation on file for at least three years. When Does The School Need To Pay The Employee? In Colorado and Utah, the terminated employee must be paid at the time of termination. If that is not possible, the employee must be paid the next day. In New Mexico and Wyoming, the terminated employee must be paid within five days. What Should The School Say To Other Employees? As a general rule, your school should avoid talking about an individual termination. Limit all communication to as few people as possible, revealing details about the termination only on a need to know basis. What Can The School Say In A Reference Letter? One of the most difficult aspects of ending the employment relationship involves requests for references. After an employee leaves your school, a prospective new employer may contact you for information about your former employee. This is a tricky legal situation because problems can arise if too little or too much information is provided. 24

30 There are a few guidelines to follow for giving references. Designate one person at the school to provide all references, to ensure consistency. Also, give only factual, job-related information including: employee name, dates of employment, position held, and salary. Sample Neutral Reference To Whom It May Concern: [Employee name] was employed by [school name] from [start date] to [end date]. At the end of her employment she held the position of [job title]. Her ending salary was [dollar amount]. 25

31 Jackson Lewis LLP Jackson Lewis LLP is a labor relations and employment law firm consisting of approximately 380 attorneys representing management exclusively. The firm s offices are located in major commercial centers across the country. Jackson Lewis attorneys have handled labor relations matters, administrative hearings and litigation in virtually every jurisdiction in the United States. Jackson Lewis is probably the first firm actively to practice preventive labor and employment law. From its beginnings over 40 years ago, Jackson Lewis has advocated the education of management as the key to avoiding legal problems. The firm has authored Avoiding Unionization Through Preventive Employee Relations Programs, published by CCH Incorporated, among other titles. This preventive approach continues to be the foundation of the firm s practice. The firm s practical hands on approach consists of training supervisors, developing policies and procedures including employee handbooks and supervisory manuals, and conducting employee relations audits. This aggressively proactive, preventive approach is particularly warranted in an age when the growth of employee rights and the surge in employment-related litigation have seriously eroded employment-at-will. The firm also has been particularly active in litigating novel and challenging wrongful discharge and EEO cases. It is proud of its record of victories for management in cases at the trial stage, but is equally conscious that efficient pretrial resolution of such matters is frequently of paramount interest. Indeed, it frequently provides counsel and conducts training seminars on implementing preventive employment practices and avoiding the courthouse. Additional information about Jackson Lewis LLP may be found on the firm s website, 26

32 California Offices of Jackson Lewis LLP Los Angeles, CA 725 South Figueroa Street, Suite 2500 Los Angeles, CA (213) Lawrence H. Stone Managing Partner Orange County, CA 5000 Birch Street, Suite 4800 Newport Beach, CA (949) Frank Liberatore Managing Partner Sacramento, CA 801 K Street, Suite 2300 Sacramento, CA (916) David S. Bradshaw Managing Partner San Francisco, CA 199 Fremont Street, 10th Floor San Francisco, CA (415) Robert M. Pattison Managing Partner Offices of Jackson Lewis LLP outside of California Atlanta, GA 1155 Peachtree Street, NE, Suite 1000 Atlanta, GA (404) Jeffrey M. Mintz Managing Partner Birmingham, AL First Commercial Bank Building 800 Shades Creek Parkway, Suite 870 Birmingham, AL (205) Thomas A. Davis Resident Manager & Partner Boston, MA 75 Park Plaza, 4th Floor Boston, MA (617) Andrew C. Pickett Managing Partner Chicago, IL 320 West Ohio Street, Suite 500 Chicago, IL (312) Jane M. McFetridge Managing Partner Cleveland, OH Park Center Plaza I 6100 Oak Tree Blvd., Suite 400 Cleveland, OH (216) James M. Stone Resident Manager & Partner Dallas, TX 3811 Turtle Creek Blvd., Suite 500 Dallas, TX (214) Christopher C. Antone Managing Partner Denver, CO 1050 Seventeenth Street, Suite 2450 Denver, CO (303) Mickey Silberman Managing Partner Detroit, MI 2000 Town Center, Suite 1900 Southfield, MI (248) Maurice G. Jenkins Resident Manager & Partner Greenville, SC One Liberty Square 55 Beattie Place, Suite 800 Greenville, SC (864) Andreas N. Satterfield Jr. Managing Partner Hartford, CT 90 State House Square, 8th Floor Hartford, CT (860) William J. Anthony Managing Partner Houston, TX Wedge International Tower 1415 Louisiana, Suite 3325 Houston, TX (713) Chip Galagaza Resident Manager & Partner Las Vegas, NV 3960 Howard Hughes Parkway, Suite 500 Las Vegas, NV (702) Gary C. Moss Resident Manager & Partner Long Island, NY 58 South Service Road, Suite 410 Melville, NY (631) Mark L. Sussman Managing Partner Miami, FL One Biscayne Tower 2 South Biscayne Boulevard, Suite 3500 Miami, FL (305) Tasos C. Paindiris Managing Partner Minneapolis, MN 150 Fifth Street Towers, Suite South Fifth Street Minneapolis, MN (612) David J. Duddleston Managing Partner Morristown, NJ 220 Headquarters Plaza East Tower, Seventh Floor Morristown, NJ (973) Richard W. Schey Managing Partner New Orleans, LA 650 Poydras Street, Suite 1900 New Orleans, LA (504) René E. Thorne Resident Manager & Partner New York, NY 59 Maiden Lane, 39th Floor New York, NY (212) Philip B. Rosen Managing Partner Orlando, FL 390 North Orange Avenue, Suite 1285 Orlando, FL (407) Donald C. Works III Managing Partner Philadelphia, PA Three Parkway 1601 Cherry Street, Suite 1350 Philadelphia, PA (267) Rick Grimaldi - Resident Manager & Partner Phoenix, AZ 2375 East Camelback Road Phoenix, AZ (602) Amy Gittler - Managing Partner Pittsburgh, PA One PPG Place, 28th Floor Pittsburgh, PA (412) Lynn C. Outwater - Managing Partner Portland, OR 806 SW Broadway, 4th Floor Portland, OR (503) Scott Oborne - Managing Partner Providence, RI 127 Dorrance Street, 4th Floor Providence, RI (401) Rebecca McSweeney Resident Counsel Raleigh-Durham, NC 1400 Crescent Green, Suite 320 Cary, NC (919) Richard S. McAtee Managing Partner Richmond, VA 321 West Franklin Street Richmond, VA (804) David E. Nagle Resident Manager & Partner Seattle, WA One Union Square 600 University Street, Suite 2900 Seattle, WA (206) Wayne W. Hansen Managing Partner Stamford, CT 177 Broad Street P.O. Box 251 Stamford, CT (203) Michael J. Soltis Managing Partner Washington DC Region 8614 Westwood Center Dr., Suite 950 Vienna, VA (703) John M. Remy Managing Partner White Plains, NY One North Broadway, 15th Floor White Plains, NY (914) Joseph A. Saccomano, Jr. Managing Partner 27

33 Atlantic Legal: Mission and Programs The Atlantic Legal Foundation is a nonprofit, nonpartisan public interest law firm with a demonstrable history of advancing the rule of law by advocating limited, effective government, free enterprise, individual liberty, school choice, and sound science in the courtroom. To accomplish its goals, Atlantic Legal provides legal representation and counsel, without fee, to parents, scientists, educators, and other individuals, corporations, trade associations and other groups. The Foundation also undertakes educational efforts in the form of handbooks and conferences on pertinent legal matters. The Foundation currently focuses on four areas: representing prominent scientists and academicians in advocating the admissibility in judicial and regulatory proceedings of sound expert opinion evidence; parental choice in education; corporate governance; and, equal protection under the law by government agencies. Atlantic Legal s advocacy has resulted in the protection of the rights of thousands of school children, employees, independent businessmen, and entrepreneurs. Atlantic Legal brings about favorable resolutions for individuals and corporations who continue to be challenged by those who use the legal process to deny fundamental rights and liberties. Please visit where the Foundation s most recent activities are detailed. Atlantic Legal Foundation, Inc Palmer Avenue Larchmont, New York (914) Phone (914) Fax

34 Published by Atlantic Legal Foundation Please visit