TYPES OF CONTRACTS1. Probationary/non tenured teacher2. Tenured (non probationary

teacher3. Temporary teacher4. Exempt Employee5. At will Employee

Probationary/non tenured Teacher

• Has an annual contract • Can be non-renewed at the end of the term of

the contract with appropriate notice• Cannot be non-renewed in the middle of the

contract• Can be Terminated in the middle of the

contract for cause. Must meet the requirements of Termination. Will need to have just cause and meet Due Process

Tenured (Non –Probationary Teacher

• Has a continuing Contract• The contract automatically renews unless

given notice• Contract cannot be non-renewed. Must go

through termination procedures outlined by the state.

• Is normally a costly process both emotionally and economically

Temporary Teachers Contract

• Has an automatic ending date that is greed upon up front and in the contract.

• District still must still give notice of contract ending by date set by the state or board policy

• This type of contract is usually used with someone filling in for a person on leave.

• In Colorado working on a Temporary contract still counts toward tenure. This varies by state

Types of Employees

• 1. Exempt Employees• 2 At will Employees

Exempt Employees

• The term exempt is referring to the Fair Labor Standards Act known to HR people as (FLSA)

• Teachers and Administrators, are exempt employees and do not fall under FLSA

• Support staff can become exempt status employees when federal criteria are met. Must consult your HR department before declaring someone exempt.

• Exempt Employees are exempted from the FLSA requirements of hours worked, overtime, breaks and other such requirements for support staff.

At Will Employees

• At will employees usually don’t have a contract. They instead have a signed work agreement.

• Either the employee or the employer can terminate the work agreement with appropriate notice (anywhere from 2 weeks to 30 days and usually contained in the work agreement)

• There is some question about whether or not just cause and due process is necessary. The best advice is to make sure you have both before ending a work agreement as a manager.

Terminating a Non-Tenured or Probationary Teacher

• The process will vary from state to state• The non-renewal process is the easiest way to terminate a

non-tenured teacher. Non renewal only happens at the end of a contract

• In Colorado Notice to non-renew is given by a date certain determined by district policy and state law

• Failure to notify by that date will cause an automatic renewal of the teacher contract.

• By Colorado Law a reason does not need to be given for non-renewal. It is sufficient to say we think we can find a better match for our building.

Terminating a Non-Tenured or Probationary Teacher

• It is a common practice in Colorado to refer the employee to HR or the superintendent if the employee has more questions about their non-renewal.

• If the non tenured teacher needs to be removed before the end of a contract the state laws governing termination must be followed

• Termination is a much more difficult process that demands due process and Just Cause. The district will be required to provide proof of each.

Termination of a Tenured or Non Probationary Teacher

• Please never say you are going to non-renew a tenured teacher. It is not possible once a teacher is on a continuing contract. You can terminate by following the law of the state.

• Termination can occur at any time during the continuing contract as long as there is Just Cause and Due Process is afforded the employee.

Steps in Terminating a Tenured or non-probationary Teacher In Colorado

• Step one - Charges are drawn up and are presented to the employee. The employee usually had either a union reprehensive or a lawyer present during this process.

• Step two – Charges are presented at a public board meeting. The board hears the charges but takes no action.

• Step three – A hearing officer is chosen by mutual agreement if possible. If not, one is assigned by the state department of education

Steps in Terminating a Tenured or non-probationary Teacher In Colorado

• Step 4 – The hearing officer will hear the case and will render a decision to the parties.

• Step 5 – The board, regardless of the decision by the hearing officer, will take action to either restore the contract or to terminate.

• Step 6. Either party at that time can appeal to the state court of appeals. District court is by- passed in this process.

Termination of Administrators

• Administrators can be terminated at any time. • If they are in the middle of a contract the district

must pay for the remainder of the contract with exceptions of charges of illegal or immoral actions.

• In some states administrators (Colorado is one) who have received tenure as a teacher in that district, are guaranteed a position as a teacher if they are terminated as an administrator.

Due Process

• Due Process - A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious.

Due Process

• In general the employer must do the following:1. Notify the employee of the charges against his2. Let the employee have an opportunity to relate the

story from their side of the issue3. If there is a policy related to due process make sure it

is followed to the letter. Meet all the deadlines and dates as described in the policy. These policies have been developed to protect the administrators and the board from charges of violations of due process.

4. The best legal advise is that worse than not having a policy is to have one and not follow it.

Just Cause

• In the workplace, just cause is a burden of proof or standard that an employer must meet to justify discipline or discharge. Just cause usually refers to a violation of a company policy or rule. In some cases, an employee may commit an act that is not specifically addressed within the employers policies but one of which the employer believes warrants discipline or discharge. In such instances, the employer must be confident that they can defend their decision.

SEVEN TEST FOR JUST CAUSE AS DEFINDED BY ARBITRATOR CAROL R. DAUGHERTY

• Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

• Was the employer’s rule or managerial order reasonably related to the orderly, efficient, and safe operation of the employer’s business?

• Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

SEVEN TEST FOR JUST CAUSE CONTINUED

• Was the employer’s investigation conducted fairly and objectively?

• At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

• Has the employer applied its rules, orders, and penalties even-handedly without discrimination to all employees?

SEVEN TEST FOR JUST CAUSE CONTINUED

• Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his service with the employer?

FAIR LABOR STANDARDS ACT

• The Fair Labor Standards Act (“FLSA”) establishes minimum wage, overtime pay, record-keeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Covered non-exempt employees are entitled to receive a minimum wage plus overtime compensation at a rate of not less than one and one-half times the regular pay rate for hours worked in excess of 40 per workweek.

FAIR LABOR STANDARDS ACT • FLSA lawsuits typically involve: • (1) employers improperly classifying employees as exempt from the FLSA

overtime regulations by giving them important-sounding job titles such as manager or assistant manager but then requiring them to perform primarily non-exempt job functions;

• (2) employers requiring workers to perform “off the clock” work for which they receive no compensation, including time required to get ready to work and time worked after punching out, including time spent on telephone calls, emails and text messages;

• (3) employers failing to compensate employees for the true number of hours worked; and

• (4) employers paying their employees “straight time” for hours worked in excess of 40 hours per week or otherwise failing to pay employees at the correct overtime rate.

FAIR LABOR STANDARDS ACT

• FACTS YOU SHOULD KNOW ABOUT FLSA:1. Districts define a work week. For example a district might say their work week begins at 12:01 am. on Monday and ends at 12:00 midnight on Sunday.

2. Employees that are not exempt can work up to 40 hours during that week without overtime.

FAIR LABOR STANDARDS ACT

3. Any hours worked over 40 for that week must be compensated at time and one half.

4. Should you have an agreement that you are going to compensate by trading time, you must compensate the hours over 40 at time and one half. For example an employee works 44 hours for you during the defined week and you are going to pay them with trade time. You would need to give them six hours off to pay for the four hours worked over 40.

FAIR LABOR STANDARDS ACT

5. Trade time should occur before the next pay period.

6. An employee cannot volunteer to work extra hours without pay. That includes taking thing home with them.

7. If you know that an employees is working more than their 40 hours, and you do nothing about it, you will be held accountable in any investigation that occurs.

8. Your are required to tell them to stop!

FAIR LABOR STANDARDS ACT

9. You cannot allow an employee to volunteer to perform a task that he is paid for in another building in the same district. For example, a custodian who works for Zila Elementary during the day cannot volunteer to sweep the floor after the Basketball game at Stewart High School. He/she must be compensated either with dollars or trade time! (Most districts violate this! There will be a high dollar cost if they are ever investigated)

FAIR LABOR STANDARDS ACT

10. It has been stated by those who enforce FSLA that education is one of the big abusers of the law. They have also stepped up their investigations as the number of complaints have grown.

11. Districts in Colorado have paid Millions of dollars in fines. One district that Randy and I are aware of paid several million dollars because district secretaries were working off the clock. Don’t be the one who causes an investigation. Follow FLSA rules!!!!

Letters of Discipline

• There are several types of letters that can be written to either cause disciple to happen or to warn employees that disciple may happen in the future. They serve as a record for your files. Depending on how sever you wish to be, you can call them by any o these names: 1. Letter of acknowledgement2. Letter of Concern3. Letter of Reprimand4. Letter of Suspension5. Letter of Termination

Letters of Discipline

• All of the letters follow take the same form following a four paragraph template.

• The four paragraphs are as follows:Paragraph 1 - Factually state what happened that has

caused action to be takenParagraph 2- State the nature of the violation. What law,

board policy, school rule was specifically brokenParagraph 3 - State specifically that the employee violated

did indeed have a violationParagraph 4 – State what action is being taken and what

might happen in the future.

Letters of Discipline– Some hints about writing Letters of Discipline

1. Never use I statements. Never say I believe, I think, I know. These statements lets a good lawyer challenge your ability to make these statements. What is you expertise that allows you to make those comments. Stick to the facts

2. Make sure you quote the chapter and verse of the law or policy that you are basing your actions on.

3. Never make a promise you cannot keep. In the last paragraph don’t say if you do this again you will be fired! If it does happen again, you have no out! Use language that gives you option.

4. End the letter with a place for the employee to sign that he has received the letter. The employee may not agree with the contents but needs to sign that he is receipt. If he refuses to sign have a witness sign that they saw you deliver the letter

5. See the following sample letter!

SAMPLE LETTER OF DISCIPLINE

• Memo address

• TO: Big Mistake, Teacher, Stewart Middle School

• FROM: John Stewart, Principal• RE: You’re on my list• Date: October 24, 2002

SAMPLE LETTER OF DISCIPLINE

• Mr. Mistake, • On Monday October 21, 2002 at 3:30 in the afternoon we met in my

office at my request to discuss discipline in your classroom. At that time I informed you of the parent complaint from Mrs. Smith. She was concerned because she believed that you used physical punishment in the form of striking Smart mouth Smith as a means of discipline. In my office you confirmed that you had indeed struck Smart mouth and that you felt justified due to his continued racial comments directed at you. My first knowledge of this incident came from Mrs. Smith, as you had not communicated with me.

SAMPLE LETTER OF DISCIPLINE

• Thompson R2-J School Board Policy JGA USE OF PHYSICAL INTERVENTION specifically states “Corporal punishment shall not be administered to students by anyone in any district”. Policy JGC speaks specifically about the use of physical force with disruptive students. This policy requires all employees to report to the principal as soon as possible all incidents of force and physical interventions with a student. Colorado Revised Statutes 18-1-703 also address the use of physical force by those supervising minors.

SAMPLE LETTER OF DISCIPLINE

• Both the laws of Colorado and the Policies of the Thompson School District have made it very clear what is expected of an employee in the are of Corporal Punishment or the use of Physical Force. You are in violation of both the law and the Policies.

SAMPLE LETTER OF DISCIPLINE

• Violation of State Law and Board of Education Policy is a serious matter. This letter of concern has been written to serve as a record that this violation occurred. In addition please understand that future violations of this matter will not be tolerated. Such violations will be met with more serious consequences that might include suspension and or dismissal.

• John W. Stewart, Principal• Zila Elementary School • Loveland, Colorado

SAMPLE LETTER OF DISCIPLINE

• I have read and understand the contents of this letter. My signature does not constitute agreement with the contents but does recognize that I have had the opportunity see the contents.

• Mr. Big Mistake,• Teacher• Stewart Elementary School