Top 5 Legal Mistakes in School District Human Resources Exploring Employment Liability ESD 112 March 16, 2015

1. Failure to Appear Reasonable Not enough to be right—government employers need to appear reasonable, fair, and equitable when working with employees, especially when administering discipline Failure to attempt to recognize and accommodate employee’s needs Failure to Communicate Expectations Processes Important Policies Using RIF or evaluations as to get rid of employees

2. Failure to Understand the Sufficient Cause Requirement of 28A (1)(a) “(1) Every board of directors, unless otherwise specially provided by law, shall: (a)... Employ for not more than one year, and for sufficient cause discharge all certificated and classified employees;” Public school employees are not “at will employees” Both certificated and classified employees are “sufficient cause” employees, regardless of whether they are represented.

3. Failure to Understand the Importance of Progressive Discipline As soon as something goes wrong with an employee, many administrators have one solution: discharge. The purpose of discipline, plans of improvement, and probation is to improve the employee’s performance. Progressive Discipline shows: – Employee had notice – Attempts made to remediate – Employer was fair – More significant now justified

4. Failure to Document Concerns Documentation is critical to every discipline or performance issue where the District intends to take action. Documentation will support: Whether the employee is on notice about the deficiency or misconduct Whether there has been progressive discipline Whether there have been other, unsuccessful attempts to “remediate” performance issues or misconduct

5. Failure to Understand the Important Principle of Due Process in Discharge Public employees frequently have a reasonable expectation of continuing employment that requires a Loudermill meeting or hearing. Even employees who arguably do not have Loudermill rights should be given an opportunity to offer explanations and mitigating circumstances Letters of probable cause for discharge should have sufficient facts—and you are bound by those facts. District administrators do not discharge certificated or classified employees—that is the role of the Board.

Read the District’s Policy or the Collective Bargaining Language School Districts are bound by their policies and procedures, which sometimes dictate steps that must be taken in the process. Collective Bargaining agreement frequently have timelines and processes that must be followed.