Hot Topics: Ten Things You Need to Know Stacy L. Haney, Esq. (804) 814-4788 shaney@reedsmith.com

1. Employment Contracts One size does not fit all. Do not use the state form contracts without, at a minimum, making some modifications. Make sure that you give the right contract to each class of employees. At a minimum, you should have different contracts for: Continuing contract (plus an annual notice of salary and assignment) Annual contract for probationary personnel (those who are continuing contract eligible) Bus drivers Classified or Support Staff

2. Continuing Contract Eligibility Only certain positions are eligible for continuing contract status “Only persons regularly employed full time by a school board who hold a valid license as teachers, principals, or supervisors shall be eligible for continuing contract status.”  8 VAC 20-44- 90. Teacher: “a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license.” 8 VAC 20-440-10.

2. Continuing Contract Eligibility Principal: “a person (i) who is regularly employed full time as a principal or assistant principal, and (ii) who holds a valid teaching license issued by the board.” 8 VAC 20-440-10. Supervisor: “a person (i) who is regularly employed full time in a supervisory capacity, and (ii) who is required by the board to hold a license to be employed in that position.” The “board” is the Board of Education, not your local school board. Do not give continuing contracts to any other employees.

3. Furloughs Have a policy. Include furlough language in employment contracts. Sample contract language: The School Board reserves the right to place Employee on an unpaid furlough status during the term of this contract for any period that the School Board, in its sole discretion, deems appropriate. In the event that a furlough is implemented, the pay that Employee is otherwise entitled to receive under this contract shall be reduced for each furlough day on a daily rate basis to be determined by dividing the salary stipulated in this contract by the number of days officially covered under the provisions of this contract. Ten month contracts should all be for 200 days.

4. BOE’s Procedure for Adjusting Grievances The law was changed substantially in 2013 and required the BOE to adopt new regulations. The new regulations will go into effect November 30, 2016. Update your policy promptly after November 30.

4. BOE’s Procedure for Adjusting Grievances Key Changes in the New Grievance Procedure No more fact finding panel Hearing officer, at the School Board’s option Timeline reduced significantly In Part II (non-dismissal grievances), after the Superintendent’s step (Step 3), the School Board has the option to decide the grievance on the written record, hold a hearing, or have a hearing officer hold a hearing.

5. Classified/Support Staff Grievance Procedure For classified/support staff dismissals, you are required to have a grievance procedure, but you are not required to have a hearing officer or even a school board hearing. The Superintendent/designee can hold the hearing, with an appeal, on the record, to the School Board.

6. Policies Regular policy updates are an excellent way to make sure that policies are reviewed on a regular basis and to make sure that you keep up with changes in the law. One size does not fit all. Read the policy before it is adopted. If you have a custom policy, review policy updates carefully before adopting them to be sure you do not inadvertently repeal a policy that you want to keep. If your policy says “The school board may, by regulation ….,” then you also need a regulation.

7. Employment Investigations and Actions When Police and/or CPS Are Involved For school-related incidents where police and/or CPS is involved, you still need to do your own investigation. Either in conjunction with police/CPS or separately. For school-related incidents, do not obligate yourself to wait until the criminal or CPS process is completed before taking employment action. The process can take a year or more Different burden of proof For non-school related incidents, you are more limited in what you can do but you may still have options. Suspension, with or without pay. Termination in the case of certain criminal convictions and CPS founded disposition.

8. Criminal Background Checks “As a condition of employment, the school boards of the Commonwealth shall require any applicant who is offered or accepts employment after July 1, 1989, whether full-time or part-time, permanent, or temporary, to submit to fingerprinting and to provide personal descriptive information to be forwarded along with the applicant's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding such applicant.” Va. Code § 22.1- 296.2.

8. Criminal Background Checks If the school board issues a contract before the criminal background check is completed, the contract should state that it is contingent upon receipt of a satisfactory criminal background check. If an applicant is not hired or an employee is suspended or terminated based on information in the report, then you must provide a copy of the report to the employee. You may not disseminate the background report except in accordance with 22.1-296.1.

9. Registry of Founded Complaints of Child Abuse and Neglect Va. Code § 22.1-296.4: “[E]very school board shall require, as a condition of employment, that any applicant who is offered or accepts employment requiring direct contact with students, whether full-time or part-time, permanent or temporary, provide written consent and the necessary personal information for the school board to obtain a search of the registry of founded complaints of child abuse and neglect maintained by the Department of Social Services pursuant to § 63.2-1515.” Va. Code § 22.1-296.4(A).

9. Registry of Founded Complaints of Child Abuse and Neglect “In addition, where the applicant has resided in another state within the last five years, the school board shall require as a condition of employment that such applicant provide written consent and the necessary personal information for the school board to obtain information from each relevant state as to whether the applicant was the subject of a founded complaint of child abuse and neglect in such state. The school board shall take reasonable steps to determine whether the applicant was the subject of a founded complaint of child abuse and neglect in the relevant state.” Va. Code § 22.1-296.4(A).

9. Registry of Founded Complaints of Child Abuse and Neglect “If the response obtained pursuant to subsection A indicates that the applicant is the subject of a founded case of child abuse and neglect, such applicant shall be denied employment, or the employment shall be rescinded.” Va. Code § 22.1-296.4(B). “If an applicant is denied employment because of information appearing on his record in the registry, the school board shall provide a copy of the information obtained from the registry to the applicant. The information provided to the school board by the Department of Social Services shall be confidential and shall not be disseminated by the school board.” Va. Code § 22.1-296.4(C).

9. Registry of Founded Complaints of Child Abuse and Neglect As with criminal background checks, if the school board issues a contract before the child abuse and neglect registry check is completed, the contract should state that it is contingent upon receipt of a satisfactory child abuse and neglect registry check.

10. Convictions and Certifications “As a condition of employment for all of its public school employees, whether full-time or part-time, permanent, or temporary, every school board shall require on its application for employment certification (i) that the applicant has not been convicted of a felony or any offense involving the sexual molestation, physical or sexual abuse or rape of a child; and (ii) whether the applicant has been convicted of a crime of moral turpitude.” Va. Code § 22.1-296.1(A).

10. Convictions and Certifications “Every school board shall also require on its application for employment, as a condition of employment requiring direct contact with students, whether full-time or part-time, permanent, or temporary, certification that the applicant has not been the subject of a founded case of child abuse and neglect.” Va. Code § 22.1-296.1(B).

10. Convictions and Certifications If an employee cannot make the required certifications, the employee is not eligible for employment by the School Board. A contract issued to an employee who cannot certify that he or she has not been convicted of a felony or any offense involving the sexual molestation, physical or sexual abuse or rape of a child and that he or she has not been the subject of a founded case of child abuse and neglect is void.

Questions?