Tag Archives: Employment

Dawg Bones

Those “at will” and probationary employees…

We are rapidly approaching the time of year when school officials make most of their personnel decisions. Teacher contracts will be renewed for next year….most of them anyway. A few will be selected for a proposed nonrenewal.  Supervisors and principals will also be making decisions about all of the non-contract people who serve on an “at will” basis. And then we have the teachers who are on probation.

Here are three things to keep in mind with regard to the probationary and at-will group.

First, don’t believe the old notion that an at-will employee can be fired for “good reasons, bad reasons or no reason at all.” There is a court case that actually says that, but you’d be a fool to rely on it.  It’s more accurate to say that they can be terminated for any legally permissible reason, even if that reason does not amount to “good cause.”

Second, it’s true that a probationary teacher can be let go at the end of the contract term if the board determines that this is “in the best interests of the school district.”  If that teacher asks you for an explanation, you can recite those words and leave it at that.  But just remember that if the teacher pursues the matter further with a grievance or a complaint of discrimination or retaliation, you will have to offer a more specific explanation.

Third, legal cases involving public employment almost always turn on the true motivation of the employer. What was the real reason for the employer’s decision?  This motivation is often revealed through informal means—emails, off the cuff remarks.  If you are a supervisor, always remember the mantra.  What….you don’t know the mantra?? Well then: see today’s Dawg Bone!

DAWG BONE:  WE MAKE OUR PERSONNEL DECISIONS BASED ONLY ON JOB-RELATED, NON-DISCRIMINATORY AND NON-RETALIATORY FACTORS.

 File this one under: EMPLOYMENT

Dawg Bones

DO YOU KNOW WHAT A “GARRITY WARNING” IS?

You supervise an employee in your school district who is accused of wrongdoing.  If what you have heard turns out to be true, the employee has not only violated school policy—he has committed a crime as well.  The employee could be fired, and could face criminal prosecution.   You are responsible for conducting an investigation into this matter, including an interview of the employee.

It would be a real good idea for you to contact your school attorney and inquire about Garrity v. New Jersey.  This case, cited as 385 U.S. 493, was decided by the U.S. Supreme Court in 1967.  The case established the general legal principle that a public employee can invoke the 5th Amendment right to refuse to incriminate himself when his employer investigates wrongdoing that might lead to criminal prosecution.  Thus, a “Garrity Warning” is due. The warning would advise the employee of the distinction between criminal prosecution vs. administrative proceedings leading to job termination.  The 5th Amendment applies to the criminal aspect only.  If you refuse to answer your employer’s legitimate questions, you might lose your job. But your silence should not be used against you in a criminal case.

Call your attorney about this.  The specific wording of a Garrity Warning is important, and may vary depending on the circumstances. But if you start that conversation by telling your school lawyer that you need help with a “Garrity Warning” I can guarantee that your lawyer will be impressed.

DAWG BONE: H.R. DIRECTORS NEED TO ADD “GARRITY WARNING” TO THEIR VOCABULARY.

 

 

Dawg Bones

WOULD YOU WALK 16 MILES TO GET TO WORK?

Think about this one. You are a custodian at a school building, working the night shift. You have fallen on hard times. You are homeless, and have no means of transportation. Well, of course you can walk—and walking was just fine until the district moved you to another building that was 16 miles away. Would you be willing to walk 16 miles to get to work? And another 16 to get to wherever it is you lay your head down to sleep?

According to Webb v. Round Rock ISD, this is the dilemma that Crystal Webb faced. On top of that, Ms. Webb claims that her employer made this move in an effort to punish her. She had previously filed a complaint with the EEOC, alleging racial discrimination. So Ms. Webb alleged in her lawsuit that Round Rock violated federal law by punishing her for engaging in “protected activity”—filing that EEOC complaint.

We don’t know what happened to the EEOC complaint, but we have a recent decision in favor of Ms. Webb from the 5th Circuit on the retaliation claim. The case is important because it sends a clear message to employers.

The legal issue here is this: what action by the employer amounts to an act of “retaliation”? The legal term used here is “adverse employment action.” Employers can do things to employees that run the gamut from trivial to severe. On the severe end, you have termination. On the trivial, you have the boss who never says “good morning.”

But what about this case? Ms. Webb’s pay was not cut. Her duties were not changed. This was a “lateral transfer” in every sense, except for the fact that Ms. Webb had no car, and could not get to the new jobsite without a ridiculously long walk.

The federal district court ruled in favor of the district in this case, holding that “Webb’s new position did not offer less opportunities for promotion or salary increases, did not involve a greater likelihood of termination, or the like.”

The 5th Circuit reversed that decision. The Court cited Supreme Court authority for the proposition that “a lateral transfer can amount to an adverse employment action without affecting these usual terms of employment.” Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006). The issue is not simply pay, or hours, or potential for promotion. The issue is whether the employer’s action was sufficiently severe to dissuade a reasonable employee from taking the protected action. In other words: if you knew that your employer would respond to your EEOC complaint by transferring you to a school that required you to walk 32 miles a day, would you be “dissuaded” from filing that complaint? Would a “reasonable employee under similar circumstances” feel that way?

The court specifically said that the circumstances of the particular employee matter. “Context matters,” the Supreme Court said in the Burlington case. Thus what is “adverse” to one employee is not “adverse” to another. The High Court offered an example: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

By that logic, a transfer to another building may be no big deal to many workers, but matters a lot if you have to walk to work.

Two caveats about this case: first, the 5th Circuit ordered that this one not be “published” in the official reports, and thus it is not supposed to serve as a precedent in future cases. Second, the case is in the very early stages. Round Rock sought dismissal of the case on the theory that there was no “adverse employment action” here. The district lost that argument, but Ms. Webb now faces the burden of proving the truth of her allegations. So we shall see.

The case is Webb v. Round Rock ISD, decided by the 5th Circuit on December 11, 2014. The citation is 2014 WL 6980143.

DAWG BONE: A “LATERAL TRANSFER” CAN BE DEEMED AN “ADVERSE EMPLOYMENT ACTION.”