Peggy Burns, Esq. Education Compliance Group, Inc Copyright © 2011, Education Compliance Group, Inc. All rights reserved.

 Hiring  Discipline  Training  Evaluating

 Job descriptions should contemplate:  Need for regular attendance  Ability to perform in a variety of essential capacities  Communication skills  Calm under pressure  Prepare for likely needs  Reflect need for versatility in hiring docs and handbooks  Show that the need for employees to perform other duties is recurrent  Keep records of each time and each situation in which this occurs  Potential legal issues  Employment discrimination concerns  Fair Labor Standards Act  Meeting students’ needs

 Financial impact ◦ Training costs ◦ Testing costs ◦ Worst case scenario: litigation costs, money judgments  Safety risks  Adverse community relations

 Thorough, comprehensive background and employment check  Observe closely, act on reasonable suspicion  Apply zero tolerance for significant performance issues  Provision of comprehensive, ongoing professional development training on student management and handling emergencies  “Create a culture in which staff places a high priority on safety by holding each other accountable.” Mark Hinson  Effective and timely evaluation processes

 Investigate  Make decisions on objective, articulable bases  Be aware of timing of discipline  Treat similar situations in a similar manner  Be able to show how one employee situation is different from another to defeat discrimination claim  Documentation is key  When a situation is likely to endanger students – Ignoring, or failing to act appropriately to discipline, can leave you vulnerable to a claim of deliberate indifference

 Liv Enlarge, a part-time driver, admitted she took more days off than permitted by contract.  Although issuing a verbal warning, her supervisor granted Liv additional leave time for a honeymoon. But approval was attached to conditions: Liv would work as scheduled for the rest of the year and follow district expectations regarding attendance from now on.  During the next school year, Liv was warned again when she exceeded her leave time. Nevertheless, she requested additional time (she had already purchased airline tickets!) Soon thereafter, her doctor recommended additional time off because of “acute situational anxiety.”  There’s more to tell...ultimately, though, Liv was terminated  She sued, alleging violation of the FMLA.

 FMLA return-to-leave provisions applies only to employees on leave from work “for the intended purpose of the leave.”  Even an employer’s “honest suspicions” that an employee was not using medical leave for its intended purpose can defeat an FMLA claim if the honest belief is “reasonably based on particularized facts.” Did the employer act in good faith?  An employee’s refusal to allow access to medical information to enable fair evaluation of the purpose of the FMLA leave provides a sound basis for termination in light of her refusal to sign a “Last chance Agreement.”  And remember – FMLA doesn’t apply if an employee doesn’t qualify

 Mechanic Vic Tum endured stress over his concerns about the safety of school buses, and took considerable leave.  After continuing absences despite doctor’s certification to return to work, his supervisor placed him on leave pending a psych examination.  During his leave, all 8 district buses failed inspection due to numerous wiring and electrical problems that looked like criminal mischief.  The police investigation was inconclusive.  Vic was released by his psychiatrist to return to work, but was often absent, and exhibited performance problems.  The district hired a private investigator to follow Vic, and the investigator determined his use of FLMA leave didn’t comport with his request for leave. He was terminated.

 Vic’s evidence: ◦ Supervisor’s actions relating to failed bus inspections ◦ The fact that supervisors made Vic see a psychiatrist ◦ The reprimands for safety issues ◦ “Illegitimately terminating him for taking a day off to attend his special needs son.”

 General... In accordance with the essential duties of the position  Specific...In accordance with the needs of the students with whom the individual will work  Think outside the box: ◦ A male custodian with upper body strength who otherwise meets the basic requirements to be an aide can be trained to work with a particular male student with special behavioral needs ◦ Look within your own district – but outside your department – for trainers ◦ Recognize creative, high-impact, training opportunities

 Use objective terms & measurable criteria  What skill sets and specific capabilities are tied to each function?  Have formal assessments or ratings  Be sure to comply with relevant policy or collective bargaining agreements regarding timing, frequency etc.  Provide opportunity to improve, where appropriate