THE EMPLOYMENT RELATIONSHIP

8/14/2019 THE EMPLOYMENT RELATIONSHIP

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The EmploymentRelationship

William Allan Kritsonis, PhD



DUE PROCESS

HOW MUCH PROCESS IS DUE?



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.



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



At-Will Employment

Non-Chapter 21 Contracts

Probationary Contracts

Term Contracts

Continuing Contracts

Third-Party Independent Contract

Educators



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.



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.



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.



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



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



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





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.



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



Requires that all teacher be hired on ahigh qualified status.

2005-2006 schools requirements for

NCLB applied to all school receiving NCLBfund.



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



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.



Provision # 1

School board and the Superintendent

Provision # 2

Campus principal and central office



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.



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



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



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



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



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



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



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



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



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



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



No such thing as “nonrenewal”

May be terminated anytime at any timefor good cause

Reduction in days served has beenapproved in more recent cases



School district never employed theteacher no contract and no legal requirements for

ending the relationship



Means that convincing evidence has beenpresented to indicate the school district is

justified in breaking off it contractual

commitment to the teacher



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?



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



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

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THE EMPLOYMENT RELATIONSHIP