Welcome Changes... But Danger Can Be Lurking Presented By: Gary J. Collins, Esq. COLLINS & BLAHA,...

Welcome Changes . . . Welcome Changes . . . But Danger Can Be LurkingBut Danger Can Be Lurking

Presented By: Gary J. Collins, Esq.COLLINS & BLAHA, P.C.

31700 Middlebelt Road, Suite 125Farmington Hills, Michigan 48334

(248) 406-1140

November 30, 2011November 30, 2011

Michigan Association of School Michigan Association of School Personnel AdministratorsPersonnel Administrators

• These slides reflect general legal standards for the related presentation and are not intended as legal advice

for specific situations.

• Future legal developments may affect these topics.

• This document may not be reproduced or redistributed, in whole or in part, without the express written

permission of Collins & Blaha, P.C.

Collins & Blaha, P.C.31700 Middlebelt Road

Suite 125Farmington Hills, MI 48334

(248) 406-1140

NOTICE:NOTICE:

2

TABLE OF CONTENTSTABLE OF CONTENTS

• Public Act 100 of 2011—Changes to the Teachers’ Tenure Act (Slides 4-9)

• Discipline Under the “Arbitrary or Capricious” Standard (Slides 10-21)

• Public Act 103 of 2011-PERA’s New Prohibited Subjects of Bargaining (Slides 22-38)

• Potential MEA Response to Any Employer Action (Slides 39-48)

3



(248) 406-1140

Public Act 100 of 2011 Public Act 100 of 2011 (HB 4626—Rep. Scott)(HB 4626—Rep. Scott)

Amendments to the Teachers' Tenure ActAmendments to the Teachers' Tenure Act



(248) 406-1140

DEFINITION OF DEMOTE

To reduce compensation for a school year by more

than an amount equivalent to 3 school days.

To suspend without pay for 15 or more

consecutive days, or to reduce

compensation by more than an amount

equal to 30 days. Does not include end

or reduction of performance-based

compensation or reduction of personnel

or in workweeks/ workdays . Collins & Blaha, P.C.

31700 Middlebelt RoadSuite 125

Farmington Hills, MI 48334(248) 406-1140

Public Act 100Public Act 100(HB 4626—Rep. Scott)(HB 4626—Rep. Scott)


5

STANDARD FOR DISCIPLINE

Tenured teachers may be

discharged or demoted for

reasonable and just cause.

Tenured teachers may be

discharged or demoted for a

reason that is not arbitrary or capricious*.

*Michigan Courts have defined “arbitrary” as “to be arrived at through an exercise of will or caprice, without consideration or adjustment with

reference to principles, circumstances, or significance,” and “capricious” as “to be apt to change suddenly or to be freakish or whimsical.”



(248) 406-1140



6

TENURED TEACHER’S PAY DURING SUSPENSION – CRIMINAL CHARGES

Tenured teacher’s pay

continues during

suspension.

If criminal charges have been filed, controlling

board may place teacher’s salary in

escrow during suspension pursuant to

filing of charges. Board must first

provide teacher with notice, explanation of

evidence, and opportunity to respond.



(248) 406-1140



7

UNREQUESTED LEAVES OF ABSENCEBoards could grant a leave of absence

for physical or mental disability

without the request of a

teacher for up to 1 year. District must

reinstate the teacher or file

tenure charges for his or her

dismissal at the expiration of 1

year.

Leave of absence can be granted by board for physical or mental disability without receiving a

written request from the teacher for a

period not to exceed 1 year and subject

to renewal at the will of the controlling

board.



(248) 406-1140



8

UNREQUESTED LEAVES OF ABSENCE (cont’d)

No statutory provision

allowing the board to require

a teacher to furnish

verification of ability to perform

essential job functions.

Board may require a teacher on unrequested leave to furnish

verification acceptable to

board of teacher’s ability

to perform essential job functions.



(248) 406-1140



9

DISCIPLINE UNDER THE “ARBITRARY DISCIPLINE UNDER THE “ARBITRARY OR CAPRICIOUS” STANDARDOR CAPRICIOUS” STANDARD

The Michigan Supreme Court has said:

“The purpose of the Teachers' Tenure Act is to improve education by preventing the removal of capable and experienced teachers due to the

arbitrary and capricious actions of changing office holders.”

Rehberg v Board of Education of Melvindale‑Ecorse , 330 Mich 541, 545 (195l).



(248) 406-1140

““Reasonable and Just Cause” DefinedReasonable and Just Cause” Defined

• Traditionally determined through arbitration awards; similar application in the courts by the Tenure Commission.

• Any good cause related to a teacher’s fitness or capacity to discharge the duties of his or her position in a manner that does not adversely affect the school district.

• Must not be arbitrary, irrational, unreasonable or irrelevant to the board’s responsibility of building and maintaining an efficient school system.

• “Failure of an employee to perform his duties in the scope of his employment in such manner as a person of ordinary prudence in the same employment would have performed under the same or similar circumstances…” Ingram v Dallas Co Water Control and Improvement Dist, 425 SW2d 366, 367 (Tex Civ App 1968)

11



(248) 406-1140

Michigan Changes Standard Of Michigan Changes Standard Of Discipline/Discharge For Tenured Teachers Discipline/Discharge For Tenured Teachers

12



(248) 406-1140MCL 38.101

““Arbitrary or Capricious” DefinedArbitrary or Capricious” Defined

13



(248) 406-1140

Just Cause Flow Chart - ProceduralJust Cause Flow Chart - Procedural

14

No

No

Yes

Yes

Collins & Blaha, P.C.31700 Middlebelt RoadSuite 125Farmington Hills, MI 48334(248) 406-1140

Just Cause Flow Chart – Procedural Just Cause Flow Chart – Procedural (Cont’d)(Cont’d)

15

NoYes

No Yes


Just Cause Flow Chart - SubstantiveJust Cause Flow Chart - Substantive

16

No

No No

Yes

YesYes

Comparison of the Two StandardsComparison of the Two Standards

• What portion of the Just Cause would have a high likelihood of relevance in the Arbitrary or Capricious:– The procedural elements will still apply:

• Notice of allegations • Opportunity to respond, explain or refute the

allegations

17



(248) 406-1140

Comparison of the Two StandardsComparison of the Two Standards

• Differences between Just Cause and Arbitrary or Capricious Standard:

– Progressive Discipline: • Under Just Cause, progressive discipline was a substantial factor;

• Under Arbitrary or Capricious, progressive discipline will be minimal.

– Second guessing Employer decisions: • Under Just Cause, Employer decisions regarding the offense and

penalty were second guessed by ALJ and Tenure Commission;

• Under Arbitrary or Capricious, minimal second guessing will be done of Employer decisions.

18



(248) 406-1140

Scrutiny Given To The Szopo Factors Under Arbitrary Or Capricious Standard

• The following factors will be substantially scrutinized:

• Did the behavior constitute a crime?

• Did the behavior involve fraud, deceit, sexual misconduct, drugs, or a weapon?

• Did the conduct result in harm to a specific victim, and if so, what is the gravity of the harm?

• The following factors will have minimal or no scrutiny:

• Was the behavior planned or deliberate?• What was the teacher’s motive or purpose?• What is the teacher’s attitude, including

whether the teacher accepts responsibility and exhibits a willingness to change?

• What is the likelihood the behavior will recur?

• How much did the teacher’s conduct deviate from the norms of appropriate conduct for members of society and teaching professionals?

• Was there any previous disciplinary record, especially for the same type of misconduct?

• What effect did any previous punishment or interventions have on the teacher’s behavior?

19


Application of Arbitrary or Capricious in Application of Arbitrary or Capricious in Washington D.C.Washington D.C.

• In July 2008, 80 probationary teachers were notified via a letter that their employment was being terminated “based on input from your principal and your status as a probationary employee.” The review of their non-renewal was subject to the arbitrary or capricious standard.

• The principals at the DC public schools were instructed to go to a computer portal and determine if each probationary teacher was to be “renewed” or “non-renewed” based on the principals’ findings.

– If the principal chose nonrenewal, they were required to complete a one page narrative explaining their reason for the non-renewal, based upon facts, not conjecture and taking into consideration all of the principals’ school-based interactions with the employee.

– Principals could not use discriminatory reasons as a basis for recommending non-renewal, but there was no limit to the number of non-renewals they could recommend and that the non-renewals could not be appealed.

20



(248) 406-1140

Arbitrator’s FindingArbitrator’s Finding

• Because the teachers were never told why they were terminated, other than that it was based on input from their principals, the non-renewals were arbitrary and capricious. They were never told what that input was and had no opportunity to provide their side of the story. “The teachers must be told what their alleged shortcomings are and be given the opportunity to answer, to explain or refute what has been said about them. The process used in this case was so devoid of due process as to be arbitrary and capricious.”

• District ordered to reinstate teachers to an appropriate position effective the date of termination with backpay. This could amount to $7.5 million.

• The decision was appealed to the Public Employee Relations Board, the equivalent of MERC, and upheld.

21



(248) 406-1140

Public Act 103 of 2011Public Act 103 of 2011 (HB 4628-Rep. Yonker) (HB 4628-Rep. Yonker)

Amendments to theAmendments to the

Public Employment Relations Act Public Employment Relations Act



(248) 406-1140



(248) 406-1140

Public Act 103 of 2011 (“PA 103”) adds seven items to the list of prohibited subjects of bargaining found in Section 15 of PERA.

1. PLACEMENT OF TEACHERS: Any decision made by a public school employer regarding the placement of teachers, or the impact of that decision on an

individual or the bargaining unit.

This provision requires that a school board create and implement objective policies and administrative regulations to govern placement of teachers, particularly where performance

evaluation ratings may impact these decisions. The standard refers expressly to teachers, and not to other individuals such

as administrators or non-certificated staff.

Public Act 103Public Act 103(HB 4628—Rep. Yonkers)(HB 4628—Rep. Yonkers)

Amendments to the Public Employment Relations ActAmendments to the Public Employment Relations Act

23

Placement of Teachers Placement of Teachers

• Not specifically discussed in any other section of education reforms.

• No savings clause exempting this provision from current CBAs.

• There is ambiguity regarding this topic and the integration of this provision with other language in a CBA covering layoff and recall.



(248) 406-1140

24



(248) 406-1140

PROHIBITED SUBJECTS OF BARGAINING (cont’d)

2. LAYOFF AND RECALL FOR TEACHERS.

Decisions about the development, content, standards, procedures, adoption, and implementation of a public

school employer’s policies regarding personnel decisions when conducting a reduction in force or any

other personnel determination resulting in the elimination of a position or a recall from a reduction in force or the

impact of those decisions on an individual employee or the bargaining unit

pursuant to MCL 380.1248.



25

Layoff and Recall for TeachersLayoff and Recall for Teachers• Refers to decisions related to a reduction in personnel,

including policies regarding hiring, staffing, personnel and reduction in force, as set forth in Sec. 1248 of the RSC.

• Sec. 1248 of the RSC provides a savings clause exempting application of this provision to existing CBAs.

• Thus, this provision cannot be implemented until the expiration of existing CBA.



(248) 406-1140

26

Layoff and Recall Issues that may be Layoff and Recall Issues that may be BargainableBargainable

• Bargaining Over The Definition And Accrual Of Seniority.• Timelines of Potential Posting Provisions.



(248) 406-1140

27


3. PERFORMANCE EVALUATIONS FOR TEACHERS AND ADMINISTRATORS

Decisions about the development, content, standards, procedures, adoption, and implementation of a public school employer’s performance evaluation system pursuant to

Section 1249 of the RSC, or decisions concerning the content of a performance evaluation of an employee under that section or the correlating section under the TTA or the impact of those

decisions on an individual employee or the bargaining unit.

*NOTE: Where the CBA allows grievances for violations of board policy, grievance procedure may allow arbitration by displaced employees.



(248) 406-1140



28

Performance Evaluations for Teachers Performance Evaluations for Teachers and Administratorsand Administrators

• Refers to decisions about performance evaluation systems adopted under Sec. 1249(1) of the RSC.

• As in Sec. 1248, Sec. 1249 of RSC provides a savings clause exempting application of this provision to existing CBAs that prevent compliance.

• Thus, this provision also may not be implemented until the expiration of existing CBA.



(248) 406-1140

29


4. DISCIPLINE AND DISCHARGE UNDER THE TENURE ACTFor employees regulated by the TTA, the policy regarding

discharge or discipline of an employee (based on the arbitrary or capricious standard), or the impact of such a decision on an individual employee or the bargaining unit; Standard other than

“arbitrary or capricious” may not be implemented.



(248) 406-1140



30

Discipline and Discharge of Certificated Discipline and Discharge of Certificated IndividualsIndividuals

• Provision prohibits maintenance of a policy other than “arbitrary or capricious” for employees covered under the TTA.

• Implementing “arbitrary or capricious” standard could result in grievances by teacher associations; arbitrators are not required to apply external law to an existing CBA.



(248) 406-1140

31

Discipline/Discharge Issues that are Discipline/Discharge Issues that are BargainableBargainable

• Does not apply to school psychologists, nurses, and social workers who are not eligible for teacher tenure.

• Therefore, individuals not eligible for tenure pursuant to the TTA may be subject to a just cause standard.



(248) 406-1140

32


5. CLASSROOM OBSERVATIONS FOR PROBATIONARY TEACHERS

The format, timing, or number of classroom observations conducted for the purpose of performance evaluations, or the

impact of those decisions on an individual employee or bargaining unit.

*NOTES: •The RSC only requires multiple observations for teachers not rated effective or highly effective on 2 most recent annual year-end evaluations, MCL 380.1249(2)(c)(iv). The TTA requires multiple observations for all annual year-end evaluations. MCL 38.93



(248) 406-1140



33

Classroom Observations for Classroom Observations for Probationary TeachersProbationary Teachers

• This provision refers to the format, timing and number of classroom observations required by the TTA for probationary teachers.

• TTA mandates these observations be completed in accord with Sec. 1249 of RSC.



(248) 406-1140

34


6. MERIT PAY FOR TEACHERS AND ADMINISTRATORSDecisions about the method of compensation for merit pay,

and decisions about how an employee performance evaluation is used to determine performance-based compensation or the impact of those decisions on an individual employee or the

bargaining unit .

*NOTE: The provisions for merit pay pursuant to the RSC remain in place since the implementation of Race to the Top.



(248) 406-1140



35

Merit Pay for Teachers and Merit Pay for Teachers and AdministratorsAdministrators

• Refers to implementation of compensation system as required by Sec. 1250 of the RSC.

• Sec. 1250 of the RSC was originally enacted by the RTTT legislation and remained unchanged by the recent educational reforms.

• Sec. 1250(2) provides a savings clause exempting application of this provision to existing CBAs where the CBA prevents compliance. It is highly doubtful that a contract would prevent compliance with the merit pay requirement. Collins & Blaha, P.C.

31700 Middlebelt RoadSuite 125

Farmington Hills, MI 48334(248) 406-1140

36


7. PARENTAL NOTIFICATIONDecision about the development, format, content, and

procedures of the notification to parents and legal guardians required under Section 1249a of the Revised School Code.

*This provision does not have any immediate effect on existing CBAs. The notification referenced in this section was not

required prior to the recent legislative amendments and are not required to be implemented until 2015-2016 school year.



(248) 406-1140



37

Summary of PERA AmendmentsSummary of PERA Amendments

Who It Applies To Immediate Implementation

Savings Clause –Wait Until Current CBA

Expires

1. Placement of Teachers Teachers

2. Layoff and Recall for Teachers. Teachers

3. Performance Evaluations for Teachers and Administrators

Teachers and Administrators

4. Discipline and Discharge under the TTA

Certificated Teachers under

TTA

5. Classroom Observations for Probationary Teachers

Probationary Teachers *

6. Merit Pay for Teachers and Administrators

Teachers and Administrators **

7. Parental Notification Teachers Collins & Blaha, P.C.31700 Middlebelt Road


(248) 406-1140

38

(2015-16)

•*There is some ambiguity between PERA, TTA and RSC on this issue.•**Highly doubtful that any contract would prevent compliance.

Potential MEA Response to any Potential MEA Response to any Employer ActionEmployer Action



(248) 406-1140

“Under this legislation, it would be possible for a school district to fire an unmarried, pregnant teacher. Or a tenured teacher who happens to be gay. Or an unpopular employee disliked by the principal. Or veteran teachers who can be replaced with cheaper, less experienced alternatives. . . Experience matters in the classroom; removing proven teachers negatively impacts student achievement. In these budget-cutting times, what’s to stop a principal from giving a veteran teacher a bad evaluation so a newer teacher can be hired for less?”

MEA Press Release entitled “A wolf in sheep’s clothing” on May 25, 2011.

School District Will Be Subject To 3 School District Will Be Subject To 3 Standards When Making Employment Standards When Making Employment

DecisionsDecisions

40



(248) 406-1140

Discrimination in the WorkplaceDiscrimination in the Workplace

COLLINS & BLAHA P.C.

The Overlap of Michigan and Federal Discrimination Laws



(248) 406-1140

41

Title VII of the Civil Rights Act and Michigan’s Title VII of the Civil Rights Act and Michigan’s Elliott-Larsen Civil Rights ActElliott-Larsen Civil Rights Act

• How they are the same:– Both laws prohibits discrimination based upon an individual’s race,

color, religion, national origin, or sex.– Prohibits Employers from discriminating in any aspect of

employment, including, hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

– No protection for discrimination based on sexual orientation.• How they are different:

– The ELCRA also prohibits discrimination based on age, height, weight, or marital status.

– In addition, ELCRA protects individuals affected by pregnancy, childbirth, or a related medical condition from being treated differently for any employment-related purpose.

COLLINS & BLAHA P.C.



(248) 406-1140

42

Potential Discrimination ClaimsPotential Discrimination Claims

• Is the student growth data statistically valid?• Are Districts enforcing their performance standards in a

disproportionate fashion based on a protected class such as sex, race, religion, disability, age, etc?

• Are similarly situated teachers being treated in a similar manner with regard to discipline and layoff?

• Is a teacher being laid off or terminated based on union activity or effectiveness?

• Litigation will be filed in Circuit Court, EEOC, MDCR, MERC, etc.

43



(248) 406-1140

Two Theories Of Recovery In Two Theories Of Recovery In Discrimination ActionsDiscrimination Actions

• Disparate Treatment

– The plaintiff must show that the employer intentionally acted to the plaintiff’s disadvantage due to his or her membership in a protected group.

– Allegations of intentional discrimination with four elements:

1. Membership in a protected group; 2. Qualification for the position; 3. Adverse employment action; and 4. He/she was treated differently from

similarly situated Employees who were not within the protected class/ replacement by a nongroup member.

• Disparate Impact– Use of a facially neutral practice that

had a disproportionately adverse effect on a group that is protected by law and of which the Employee is a member.

– Intent is not a required element.– Plaintiff must show

1) that the Employer used an employment practice that caused a disparate impact on the basis of race, color, religion, sex, or national origin, and the Employer failed to demonstrate that the challenged practice is job-related and consistent with business necessity; or 2) that less restrictive employment practices were available and that the Employer refused to adopt them.

COLLINS & BLAHA, P.C.


44

Burden ShiftingBurden Shifting

45



(248) 406-1140

Defining The Terms Of The Burden Defining The Terms Of The Burden Shifting AnalysisShifting Analysis

• Legitimate nondiscriminatory business reason: – Must established, through the introduction of admissible evidence, the legitimate and

nondiscriminatory reasons for the adverse employment action. Courts will not analyze the “soundness” of that decision and will not second guess whether the employment decision was “wise, shrewd, prudent, or competent.” .

– However, the reason must be rational and relate back to a work related reason, i.e.) ineffectiveness or poor performance are considered legitimate nondiscriminatory business reasons.

– The explanation must be factually and legally sufficient (i.e. nondiscriminatory) to justify a judgment for the defendant.

– Employer cannot meet this burden merely through an answer to the complaint or by argument of counsel.

• Pretext for Discrimination:• Includes situations where the employer deviates from its normal procedure, makes

discriminatory remarks, offers inconsistent reasons, or destroys or conceals evidence. • Courts look to whether consideration of a protected characteristic was a

motivating factor, whether it made a difference in the contested employment decision.

46



(248) 406-1140

Reasonable Accommodation Reasonable Accommodation Requirement Under The ADARequirement Under The ADA

• To determine if an individual qualifies for a reasonable accommodation under the ADA, a two prong analysis is needed:1. The first prong is to determine whether a job function is essential.

Courts have held that attendance is an essential function of any job.

2. The second prong addresses the issue of whether “any reasonable accommodation by the employer would enable the employee to perform those functions.”

The employer can prevail if it could show that both attendance and punctuality were (1) essential, and (2) the employer’s reasonable attempts to accommodate the employee failed. Employee must show that the needed accommodations were reasonable, that the accommodations would not impose undue hardship upon the Employer, and that the Employee would have been capable of performing the job with the suggested accommodations.

47



(248) 406-1140

How Discrimination Claims are How Discrimination Claims are LitigatedLitigated

• Plaintiff/Teacher elects a jury or the judge the trier of fact.

• If a jury trial is elected, all questions of fact are decided by the jury and the judge makes decisions on questions of law.

• A prevailing Plaintiff/Teacher would receive attorney fees in a discrimination claim, in addition to back pay and benefits, equitable relief (including reinstatement), front pay (i.e., damages for future income loss), and compensatory damages (including pain and suffering). Michigan’s ELCRA provides no caps to damages awarded to prevailing Plaintiffs.

48



(248) 406-1140

THANK YOU FOR ATTENDING THE PRESENTATION ON

““Instruction begins when you, the teacher, Instruction begins when you, the teacher, learn from the learner; put yourself in his learn from the learner; put yourself in his place so that you may understand . . . what place so that you may understand . . . what he learns and the way he understands it.”he learns and the way he understands it.”

Soren KierkegaardSoren Kierkegaard

Gary J. Collins, Esq.COLLINS & BLAHA, P.C.

31700 Middlebelt Road, Suite 125Farmington Hills, MI 48334

(248) 406-1140

Welcome Changes . . . Welcome Changes . . . But Danger Can Be But Danger Can Be

LurkingLurking

Date post:	03-Jan-2016
Category:	Documents
Upload:	bridget-owens
View:	213 times
Download:	0 times

Welcome Changes... But Danger Can Be Lurking Presented By: Gary J. Collins, Esq. COLLINS & BLAHA,...

Documents