THE EMPLOYMENT RELATIONSHIP
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Transcript of THE EMPLOYMENT RELATIONSHIP
8/14/2019 THE EMPLOYMENT RELATIONSHIP
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The EmploymentRelationship
William Allan Kritsonis, PhD
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DUE PROCESS
HOW MUCH PROCESS IS DUE?
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What Is Due Process?•An established course for judicial proceedings orother governmental activities designed to safeguard
the legal rights of the individual. Due process dictatesthat everyone is equal in the eyes of the law, and italso states that the law must be fair and clearlystated to prevent arbitrary actions by the state.
• Fifth & Fourteenth Amendment
•
Perry v. Sindermann (1972)•Contractual employee has a property right in the jobduring the term of the contract. Any effort of theschool to terminate the contract prior to its stateddate of expiration is a deprivation of property. Thus,some amount of due process of required. Whether
the employee is a continuing contract teacher withtwenty years on the job or a first-year probationaryteacher, the constitutional analysis and theconstitutional right to due process are the same.
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How Much Process Is Due?•As for the level of formality of due process in a
typical employee termination case, the essentialsare:
1.Be advised of the cause or causes of the terminationin sufficient detail to fairly enable him/her to showany error that may exist;
2.Be advised of the names and the nature of thetestimony of witnessed against him/her;
3.At a reasonable time after such advice, be given ameaningful opportunity to be heard in his or her owndefense; and
4.Be given an opportunity for a hearing before a
tribunal that both possesses some academicexpertise and has an apparent impartiality
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At-Will Employment
Non-Chapter 21 Contracts
Probationary Contracts
Term Contracts
Continuing Contracts
Third-Party Independent Contract
Educators
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Simply means that either the employer oremployee is free to end the relationshipat any time and for almost any reason.
The employee has no contractualobligation to work for the employer for aset period of time. In addition, theemployer does not guarantee the
employee continued employment for aset period of time as well.
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Given to new employees who are usually first yearteachers who are fully certified. (Ch. 21 TEC)
Educator will serve a probationary period that is basicallythe same in all school districts throughout the state. Afterdesignated period, educators will split into term orcontinuing contract employees.
Probationary period can be as long as three years, exceptfor teachers coming to the district after having beenemployed in public education for five of the eightpreceding years. The teacher will be employed on a
contract that cannot exceed one year in length. Thus, inthe typical situation, the teacher will serve under threeconsecutive one-year probationary contracts.
Probationary teachers can resign without penalty up toforty-five days before the first day of instruction.
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Certain employees are entitled to awritten contract under the TexasEducation Code
According to § 21.002 of the TEC, schooldistricts are required to employ eachclassroom teacher, principal, librarian,nurse, or counselor under a Ch. 21
contract, meaning a probationary, aterm, or a continuing contract.
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Determined by local school board
Any non-probationary Ch. 21 contract fora fixed term
Length of contract can be up to fiveschool years.
Key factor: lays out a beginning andending date
Resign forty-five days prior to instruction
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Automatically rolls over from one year tothe next without the necessity of boardaction
No specific length of time Contract remains in effect until the
teacher resigns, retires, is terminated, oris returned to probationary status
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Private companies offered to provideteachers for public school districts
Baby boom generation of teachers
nearing retirement (TRS) Retire, begin drawing benefits, and then
go to work at a salary equivalent to orbetter than what they had been making
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Power to adopt rulesspecify the various
classes for educatorscertification.
The rules for outstate educators.
The disciplinaryprocedures by whichthe certification maybe revoked.
SBEC must appoint an advisorycommittee with respect toeach class of educators
certification. Rules adopted by SBEC and
review by SBOE
SBOE is limited by theprovision of the SBEC.
SBOE must vote and can only
reject by two thirds vote.
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14 members only eleven of them can vote. 3 NONVOTING MEMBERS
TEA employee, Texas higher educationcoordinating board member, dean of thecollege of education
4 public school teacher 2 public administrators
1 public school counselor 4 citizens
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Requires that all teacher be hired on ahigh qualified status.
2005-2006 schools requirements for
NCLB applied to all school receiving NCLBfund.
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Employees under state law may not holdtwo legally incompatible offices.
ex. Being a teacher and a trustee
Hiring immediate family Requiring that employees live with the
district
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Laws that prohibit discrimination based on race, sex,religion, age, national origin, and disability apply toall major employers, including Texas public schooldistricts.
First, law apply to all employees, regardless of
contractual status. Second, the laws that prohibit discrimination haveimplications for hiring process itself.
Third, sexual harassment Fourth, there is no law that requires school districts
either to advertise vacancies or to post them
internally.
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Provision # 1
School board and the Superintendent
Provision # 2
Campus principal and central office
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SBEC now has the duty to obtain criminalhistory record information on all holders of and applicants for educator certification.
The school district are no longer required
such background check. School districts will still do back ground
checks on noncertified employees andvolunteers
When school district will do backgroundchecks on contracts with another entity fortransportation.
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At-will Employees Non-chapter 21 Contracts Probationary Contracts Term Contracts Continuing contracts 3rd party independent contractors The independent hearing systems A few final thoughts on “Good Clause” Constructive Discharge
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Contract renewal/nonrenewal do not apply All federal and state mandates prohibiting
discrimination apply with equal force Due process does not apply, no property interest Can at-will employees be terminated for “no
reason at all?” Can be terminated for any legally permissible
reason
Can be terminated at anytime No constitutional requirement of
predetermination due process
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May file a grievance or lawsuit assertingtermination impermissibly motivated
If employee does seek legal recourse:
Must show something more than “unfair”treatment
Burden on employee to show employer’saction illegal
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Termination determined by the schoolboard
Not subject to the independent hearing
system or statutory nonrenewal process If contract contains a specific term,
employee is entitled to constitutional dueprocess
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Intent to make easy to terminate the relationshipbetween the teacher and school district
Board simply gives notice to teacher of itsdecision to terminate employment
No specific reason is required
Law does not require district to afford teacher ahearing, although they could choose to do so
Board’s decision is final and may not be appealed
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Does not prevent teacher from filing suitalleging a wrongful discharge
Contract can be non-renewed even with thesuperintendent’s recommendation
Immediate termination rather than waiting District must provide teacher with formal due
process Must demonstrate good reason for ending
relationship early
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State law permits early termination, orsuspension without pay for the rest of the schoolyear For good cause as determined by the board of conduct
for the profession as generally recognized and appliedin similarly situated school districts in this state
Next process would be independent hearingsystem
Full blown due process hearing Right too present evidence
Cross examine witnesses
Be represented by counsel
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School can take one of three actions: Renew, non-renew, terminate
Non renewal contract refers to decision of
school district to let term contract expire. Multiyear term contract:
common practice is to extend the contracteach year
Decision to non-renew can be made only inthe final year of contract
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Requirements: Board must give notice of proposed renewal or
nonrenewal by the 45th day before the last dayof instruction in the school year
Board must consider the teacher’s evaluationprior to any decision not to renew
Board must consider the most recentevaluations before making a decision not torenew a teacher’s contract if the evaluationsare relevant to the reason for the board’saction
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Entitled to a closed hearing with board priorto nonrenewal: 15 days to request
Teacher may appeal to commissioner of education
Superintendents nonrenewal contract: Entitled to notice no later than the 30th day before
last day of contract Reasonable notice of the reason for proposed
renewal
Cost of buyout: if the payment exceeds one yearof his or her salary, TEA must deduct excessamount for district’s funding for the next schoolyear
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No such thing as “nonrenewal”
May be terminated anytime at any timefor good cause
Reduction in days served has beenapproved in more recent cases
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School district never employed theteacher no contract and no legal requirements for
ending the relationship
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Means that convincing evidence has beenpresented to indicate the school district is
justified in breaking off it contractual
commitment to the teacher
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Employee resigns and then claims thatthe resignation was not voluntary
Actions of the employer forced employeeinto an involuntary resignation
Focus is twofold Were employee’s working conditions
“intolerable?” Was there “illegal conduct” on the part of the
employer?
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If a case can be proven, employer isliable for the illegal conduct leading tothe discharge, just as he/ she would be in
the case of formal discharge Does not prevent him/her from filing a
federal lawsuit claiming the resignationwas forced due to intolerable conditions
created by the employer
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William Allan Kritsonis, PhDWilliam Allan Kritsonis, PhD
ProfessorProfessor
PhD Program in Educational LeadershipPhD Program in Educational Leadership
Whitlowe R. Green College of EducationWhitlowe R. Green College of Education
Prairie View A&M UniversityPrairie View A&M University
Member of the Texas A&M University SystemMember of the Texas A&M University SystemPrairie View, Texas 77446Prairie View, Texas 77446