EMPLOYMENT LAWAN OVERVIEW
forCivitas Institute
Presented by;Douglas S. Punger
Of counselFaw, Fogler and Johnson, P.A.
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Schools are a people business
Teachers
~I Custodians
Bus drivers
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Quality Education
• Hire the most qualified staff• Provide quality training to improve skills.• Use evaluation process to achieve
excellence.• Reward quality performance• Remove those who do not meet LBOE
standards.
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Who "Employs" School Staff?
• Under NC law, school employees are employed bythe local board of education (LBOE) upon therecommendation of the Superintendent.
• If the Superintendent does not recommend that aperson be employed, the LBOE may not employ aperson on its own motion.
• School employee also are disciplined or dismissedupon the recommendation of the Superintendentand approval of the LBOE.
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Three Categories of Employees• Employment at Will:
• Clerical, food service, transportation, maintenance, teacherassistants, etc.
• Commonly referred to as "Noncertificated" personnel."• about 50% of school employees
• Employment contract for a fixed term• Probationary Teachers and other probationary "instructional
personnel"• Assistant Principals, Principals and other school
administrators.• Commonly referred to as "Certificated" or "Licensed"
personnel.• Employment on a continuing contract = "Tenure" or
"Career Status"• Teachers and other instructional personnel• Guidance, psychologists, social workers, etc
Employment at Will• In general, an employer may dismiss an employee AT WILL at any
time for any reason with or without cause, with or without notice.• N.C.G.S. I ISC-4S, grants non-certificated employees due process
rights but not substantive due process rights.• Under N.C.G.S. IISC-45, a non-certified employee may request and
shall be entitled to receive written notice as to the reasons for theemployee's dismissal, demotion, or suspension without pay. The noticeshall be provided to the employee prior to any local board of educationhearing on the issue.
• In addition, a non-certified employee may appeal to a local board for ahearing and to the Superior Court: decisions concerning theirdismissal, demotion, or suspension without pay.
• This subsection shall not alter the employment status of a noncertifiedemployee.
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FAIR LABOR STANDARDS ACT
• In general, non-certificated,' "at will"employees are NOT EXEMPT from theprovisions of the Fair Labor Standards Act.• Minimum Wage• Over time compensation
• CertificatedlLicensed Personnel AREEXEMPT from the FLSA.
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NC Cases on "At Will" DoctrineSides v. Duke University,
74 N.C. App. 331,328 S.E. 2d 81 (1985)• Plaintiff, a nurse at Duke Hospital, alleged she
was terminated because she refused to commitperjury in a medical malpractice lawsuit.
• NC Court of Appeals ruled that Sides had stated aclaim for wrongful discharge on the basis that noemployer may discharge an employee for refusingto commit an unlawful act.
• However, Sides has been strictly construed by theNC appellate courts.
COMAN V. THOMAS MANUFACTURING325 N.C. 172,445 S.E. 2d 113 (1989)
• Truck driver alleged that he was fired for refusing to drive morehours than allowed by law - a ten hour shift.
• Court provides a great summary of the history of theEmployment-at-will Doctrine.
• "While there may be a right to terminate a contract at will for noreason, or for an arbitrary or irrational reason, there can be noright to terminate such a contract for an unlawful reason orpurpose that contravenes public policy."
• Court found and concluded that employee was being asked toviolate both federal and State law.
• Court also found that action violated strong public policy insupport of highway safety.
• 4/5 of states recognize a cause of action for wrongful discharge.
What are Rights of "At Will" School Employees"?
• N.C.G.S. § 115C-45• Right to be given written notice of the reason(s) for
dismissal, demotion or suspension without pay.• Right to an informal hearing before LBOE.• Local board's should establish rules or procedures for
hearing in its "Employee Grievance Procedure."• Hearing may be informal, a right to appear and be heard.• Board should make a written decision that should include
findings of fact and conclusions oflaw.
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What are Rights of "At Will"School Employees"?
• Non-certificated, at will employees may not be terminatedfor an unlawful reason or for a purpose that contravenespublic policy.
• Non-certificated, "at will" employees are protected byfederal and state employment laws that prohibitdiscrimination on the basis of race, color, religion,national/ethnic origin, age, sex and handicappingcondition .
• "At will" employees may file charges or complaints ofemployment discrimination with the Equal EmploymentOpportunity Commission (EEOC).
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Fixed Term Employment ContractsProbationary Teachers
• A probationary contract is a trial periodto determine whether to award careerstatus.
• NC requires a probationary teacher toserve four c0nsecutiv~QnDear contractsbefore ~ eligible to earn"Career Status" or "tenure."
• A teacher who has obtained career statusin any NC public school system need notserve another probationary period ofmore than one year. The board may grantcareer status immediately uponemploying a career teacher.
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Fixed Term Employment ContractsSchool Administrators
• The initial contract between a schooladministrator and a LBOE shall be from 2to 4 years, ending on June 30.
• A subsequent contract shall be for 4 years.• Rolling annual contract renewals are not
allowed.
Dismissal & Nonrenewal of ProbationaryTeachers, NCGS 115C-325(m)(2)
• The LBOE may not dismiss a probationary teacher oradministrator during the school year except for thereasons and by the procedures for the dismissal of a careeremployee.
• The LBOE, upon recommendation of the superintendent,may refuse to renew the contract of any probationaryteacher for any cause it deems sufficient: Provided,however, that the cause may not be arbitrary, capricious,discriminatory or for personal or political reasons.
• Same standard applies to the Non-renewal of a schooladministrator's contract.
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Statutory Process for Non-renewal ofProbationary Teachers
• Notice of Teachers Eligible to Achieve Career Status. -At least 30 days prior to any board action granting careerstatus, the superintendent shall submit to the board a list ofthe names of all teachers who are eligible to -~~ieve careerstatus:-Theli~i-is ;p~bliCieCord-. ------------
• By June 15 a probationary teacher whose contract will notbe renewed for the next school year shall be notified.
Statutory Process for Non-renewal ofSchool Administrator Contracts
• If a superintendent decides not to recommend the renewal of a sc~goladministrator's contract.jhe superintendent shall give the schooladmInistrator written notice of the decision and the reasons for it byMay I of the final year of the contract
• No action by the LBOE is necessary unless the administrator requests,within 10 days of receipt of the superintendent's decision, a hearingbefore the LBOE. Failure to file a timely request for a hearing resultsin a waiver of the right to appeal the superintendent's decision.
• If a school administrator request a hearing, the LBOE shall conduct ahearing and make a final decision by June 1.
• A decision not to offer the school administratora new or extendedcontract may be for any cause that is not arbitrary, capricious.discriminatory, personal, or political.
• The local board's decision is subject to judicial review.
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NC Court Decisions on Probationary Teacher Contract.
Williams v. Hyde Co. Bd. of Ed.490F. 2d 1231 (4thCir.1974)
• Probationary teacher whose contract is notrenewed has no right to a full due processadversary hearing.
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ABELL v. NASH COUNTY Bd. of Ed.,321 S.E.2d 502, 71 N.C.App. 48, 20 Ed. Law Rep. 1249 &365 S.E.2d 706, 89 N.C.App. 262,45 Ed. Law Rep. 389
• It is the duty of LBOE to determine substantive basisfor recommendations of non-renewal of probationaryteachers and to assure that non-renewal is not for aprohibited reason;
• Board did not act arbitrarily or capriciously in refusingto renew teachers' contracts based on head coachchange; both teachers had originally been hired basedon their coaching ability, neither had any experience inteaching math; refusal to renew contracts assured newhead coach of some flexibility in developing his owncoaching staff.
SPRYv. WSIFC BOARD OF EDUCATION412 S.E.2d 687, 105 N.C.App. 269, 72 Ed. Law Rep. 420
• Teacher had no statutory right to appeal non-renewalof her contract and, thus, could sue for alleged dueprocess violations in appropriate court;
• .Level of inquiry engaged in by school board withrespect to reasons for recommendation that contractnot be renewed was sufficient to meet requirements ofstatute; and
• Inquiry by superintendent's office into teacher'sallegations that malice of evaluators affected theirevaluations of teacher was sufficient to remove anytaint that might have existed in evaluations.
Employee Constitutional RightsFreedom of Speech
• Pickering v. Board of Education.• In general, a teacher's (school employee) speech
on legitimate matters of public concern isprotected by the First Amendment.
• Supreme Court applies a balancing of interests testto determine whether a public employee's speechis constitutionally protected.
Balancing of Interests Tests• Whether statements were directed toward
a person with whom employee wouldnormally be in contact and, therefore,would seriously undermine theeffectiveness of the working relationshipbetween the employees;
• Whether employee's position is one inwhich the need for confidentiality is sogreat that even completely correct publicstatements might furnish a permissibleground for dismissal.
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Balancing of Interests Tests• If statements were false, were
they per se harmful to theoperation of the school district.
• Were the employee's commentsaddressed to a legitimate matterof public concern?
Balancing of Interests Test• Whether the employee has
carelessly made false statementsabout matters so closely relatedto the day-to-day operations ofthe schools that any harmfuleffects would be difficult tocounter because of the teacher'spresumed greater access to thefacts.
Balancing of Interests Test• Whether a teacher's public
statements were so withoutfoundation as to call intoquestion hislher fitness toperform hislher duties in theclassroom.
Burden of Proof -Mt. Healthy v. Doyle
• Employee must show that speech wasconstitutionally protected.
• Did it concern a legitimate matter ofpublic concern?
• If protected, employee must show thatspeech was a substantial or motivatingfactor in employment decision.School may still show by apreponderance of the evidence that theame action would have been taken in the
absence of the protected conduct.
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What criteria ,~used to determine"legitimate matter of public concern"?
• Connick v. Myers, S. Ct. 1983• Speech that relates to a "matter of political, social or
other concern to the community" is protected• Speech by an employee about a. private interest such
as employee morale or working conditions isgenerally not protected.
• Facts: Assistant DA distributed survey among staffabout morale in DA's office = a personal matter andnot a legitimate matter of public concern.
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What criteria is used to determine"legitimate matter of public concern"?• Garcetti v. Ceballos, S. Ct., 2006• S. Ct. further clarified Pickering & Connick rules.• Public employees are not insulated by 1st Amendment from
disciplinary measures if they make statements pursuant totheir official duties that are objectionable to their superiors.
• A deputy DA and his supervisors exchanged verbal andwritten messages about alleged inaccuracies in an affidavitfor a search warrant prepared by the deputy DA.
• Issue: whether the verbal and written exchanges wereprotected speech under the 1st Amendment?
• S. CT. held "NO."
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Tenure StatutesElements of Job Security
• Substantive Due Process Rights.• Teacher may be dismissed only for statutory
substantive grounds.• Procedural Due Process Rights.
• Notice of Intent to Dismiss• Statement ofthe Charges• Right to a formal due process hearing• Right to a lawyer• Right to some form of "discovery'"• Right to present evidence and cross-examine
adverse witnesses• Right to impartial hearing board• Right to a record of hearing• Burden of Proof on Superintendent
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Grounds for Dismissal, NCGS §115C-325Tenured Teacher in North Carolina
• Inadequate performance.
• Immorality.• Insubordination.• Neglect of duty.• Physical or mental
incapacity .• Habitual or excessive use
of alcohol or non-medical use of acontrolled substance.
• Conviction of a felony or acrime involving moralturpitude.
• Advocating the overthrowof the government by force,violence, or other unlawfulmeans.
• Failure to fulfill the dutiesand responsibilitiesimposed upon teachers orschool administrators bythe laws of this State.
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Grounds for DismissalTenured Teacher in North Carolina
• Failure to comply withsuch reasonablerequirements as the boardmay prescribe.
• Any cause whichconstitutes grounds for therevocation of the teacher'scertificate.
• A justifiable decrease inthe number of positions -reduction in force.
• Failure to maintain a currentcertificate.
• Failure to repay moneyowed to the State.
• Providing false informationor knowingly omitting amaterial fact on anapplication or in response toa reemployment inquiry.
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Grounds Related to Job PerformanceInadequate Performance
• NCGS 115C-325( e)(3) Inadequate Performance. --In determining whether the professional performance of acareer employee is adequate, consideration shall be givento regular and special evaluation reports prepared inaccordance with the published policy of the employinglocal school administrative unit and to any publishedstandards of performance which shall have been adoptedby the board. Failure to notify a career employee of aninadequacy in his performance shall be conclusiveevidence of satisfactory performance .
Grounds Related to Job PerformanceInadequate Performance
• Cases:• Nestler v. Chapel Hill, 311 S. E. 2d 57 (NC App.
1957)• Davidson v. WSIFC Board of Ed., 303 S.E. 2d 202
(NC App. 1983)• School district must inform teacher of performance
expectations & inadequacies in performance• Should give employee an opportunity to improve - Plan of
Assistance or Plan of.Action -• Subjective criteriai; legally acceptable• Grounds can be based on any aspect of the teacher's
performance, i.e .. teaching methods, classroommanagement
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Grounds Related to Job PerformanceEvidence used to prove inadequate performance
• Formal evaluations-~~II) t> • Observations of supervisors or other
fI witnesses'i. I IA~-(~. f~; • Parent/stud~nt complaints ort . ; Ii. commendations
N" • Lesson plans• Student test scores• Samples of student work• Audio & video-tapes of lessons
Grounds Related to Job PerformanceNeglect of Duty
• Cases:• Overton v. Goldsboro Bd. of Ed., 283 S.E. 2d 495 (1981),• Thompson v. Wake Co. 230 SE. 2d 164 (!986)
• Term given its common meaning• Teacher must have been informed of duties = policies.• ••It must be shown that a reasonable man under the same
circumstances would have recognized the duty and wouldhave considered himself obligated to conform."
• Can involve only one incident provided evidence of neglect isclear. Thompson v. Wake Co.
• Teacher's dismissal for not reporting to work after beingcharged with a felony was overturned when it was shown thatteacher req uested a leave of absence until his name wascleared in court. Overton v. Goldsboro Bd. of Ed
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Grounds Related to Job PerformanceNeglect of Duty - Other States
Sample cases:
• Leaving a class unattended frequently• Failing to perform assigned duties, such as hall
supervision• Excessive tardies or absences• Failing to file required reports, turn in grades etc.• Failing to attend important meetings, such as IEP
meetings.• A finding of negligence that proximately caused a
serious student injury
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Grounds Related to Job PerformanceFailure to Fulfill Statutory Duties,
NCGS § 11SC-307, Duties of Teachers
., To Maintain Order and • To Enter into theDiscipline. Superintendent's Plans for
• To Provide for General Professional Growth.Well-Being of Students. • To Discourage
• To Provide Some Medical Nonattendance.Care to Students. • To Make Required Reports.
• To Teach the Students. • To Take Care of SchoolBuildings.
