Rehiring Retired Employees…Now Say That Three Times Fast!

08/15/18

 

This month, our firm has fielded a number of questions related to the process for rehiring retired, certified employees with regard to the salary cap and potential private contracting agreements.

The Salary Cap and Rehiring of Retired Teachers

S.C. Code Ann. § 9-1-1790

In 2012, the General Assembly amended S. C. Code Ann. § 9-1-1790 to place a $10,000 cap on the salary that may be earned during a calendar year by a retiree who returns to work. Once the retiree has earned $10,000, his/her retirement allowance will be discontinued for the remainder of the calendar year. This earnings limitation does not apply to those individuals who retired before January 2, 2013, or to those individuals who were 62 years old at the time of their retirement.

S.C. Code Ann. § 9-1-1795

In addition to the retirement date and age exceptions, S.C. Code § 9-1-1795 provides other circumstances under which the earnings limitation will not apply. First, if the retiree is employed in a school that has been designated by the State Board of Education as a geographic need area, the earnings cap does not apply. The S.C. Department of Education (“SCDOE”) has advised that it may ask that the law be amended to designate an entire district as a geographic need area, rather than individual schools.

If the retiree is employed to teach in the classroom in a critical academic need area, the cap also is not applicable. While report cards will not be issued until next Fall, the statute also states that, if the individual is employed in school that has received a “below average” or “unsatisfactory” academic performance rating pursuant to the Education Accountability Act, the cap does not apply. The list of critical academic need areas and geographic need areas is updated each year and may be found at the www.scstudentloan.org website.

Section 9-1-1795 also prohibits districts from hiring retirees until after May 31 of each year and states that, upon hiring a retiree, the district must notify SCDOE of that hiring and provide documentation that the district was not able to secure a qualified non-retired individual for the position.

The law is clear that, for all retirees who are returning to work pursuant to § 9-1-1795 and not subject to the earnings cap, districts must first seek to hire a qualified, non-retired applicant. Thereafter, if such a person cannot be located, the district must wait until after May 31 to offer the position to the retired individual.

The law is less clear concerning the procedures for hiring retirees who are returning to work subject to § 9-1-1790. Because § 9-1-1790 does not provide any restrictions as to the date by which a retired individual may be hired, or as to the process which must be followed, there is a strong argument that districts are not required to adhere to the May 31 date or to seek a qualified, non-retired employee, unless their specific board policy so requires. To clarify this issue, SCDOE has requested the inclusion of a proviso in the 2019 Appropriations Act to allow districts to hire retired educators on or before May 1, in keeping with the notification provisions of the Teacher Employment and Dismissal Act.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.

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Legal Alert: SC Pregnancy Accommodations Act

07/06/18

The South Carolina Pregnancy Accommodations Act (SCPAA) was signed into law on May 17, 2018. With the signing of the SCPAA, South Carolina joins twenty-two (22) other states providing protection to pregnant employees in addition to those provided under federal law. Employers are required to conspicuously post written notice of the SCPAA and its protections no later than 120 days after May 17, 2018 and also to provide new employees with a copy of the notice upon hiring.

Before the enactment of the SCPAA, South Carolina did not have a law governing the employer-employee relationship concerning pregnancy or pregnancy-related medical conditions; thus, employers were guided only by the federal Pregnancy Discrimination Act (PDA) of 1978. The PDA amended Title VII of the Civil Rights Act of 1964 by expanding the meaning of sex discrimination to include “sex discrimination on the basis of pregnancy.” The PDA sets forth the limitations imposed on an employer once it is placed on notice of an employee’s pregnancy and addresses the employee’s rights while pregnant. In essence, the PDA states that pregnant mothers “and [those with] related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

Similarly, the SCPAA requires employers to provide reasonable accommodations to new mothers and pregnant employees where those accommodations do not impose an undue burden on the employer and prevents employers from discriminating against pregnant employees and new mothers. The law authorizes the South Carolina Human Affairs Commission to promulgate regulations implementing the law, which could include potential penalties for employers who violate the SCPAA. Specifically, the SCPAA prohibits employers from refusing to hire or terminate an employee; isolating or limiting an employee from other employment (promotion); reducing an employee’s wages; failing to make reasonable accommodations for medical needs relating to the pregnancy, childbirth, a related medical condition stemming from pregnancy; or taking adverse action against an employee for requesting or using reasonable accommodations (retaliating against an employee).

Like the PDA, reasonable accommodations under the SCPAA may not “impose an undue hardship on the operation of the business of the employer.” Employers are not required to “construct a permanent, dedicated space for expressing milk;” “create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee;” or “hire new employees that the employer would not have otherwise hired.” However, cost effective accommodations may include: implementing more frequent bathroom and food breaks; allowing coworkers to assist the new mother with heavy-lifting; providing comfortable seating options such as stools or chairs rather than requiring a new mother to stand for hours; and modifying work schedules.

While the SCPAA does not obligate employers to automatically provide reasonable accommodations, employers should take steps to inform pregnant employees of their rights through updating their employee handbooks and policies and be willing to engage in dialogue with employees who request accommodations.

Should you have any questions about the SCPAA, please do not hesitate to contact White & Story, LLC.

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She Gets a Contract, He Gets a Contract, Everybody Gets a Contract! – A Certified Employee Primer Just In Time For Contract Renewal Season

01/16/18

Contract renewal season is right around the corner. Under state law, all certified employees must be notified before May 1st of whether the district will issue them a contract of employment for the subsequent school year. This article provides a list of best practices for your District when making these personnel decisions that will impact students for the next school year.

CONTRACTS AND EVALUATION PROCEDURES

Induction Contracts

First year teachers or those with less than one year of teaching experience will begin teaching under an induction contract. At the end of the three-year induction period, the district may (1) employ the teacher under another induction contract, (2) employ the teacher under an annual contract, or (3) terminate the teacher’s employment. Under induction contracts, teachers have substantially less due process rights compared to rights held under an annual contract.

Annual Contracts

With regard to teachers employed under annual contracts, districts have three options. Similar to the options available with the induction contract teacher, a district may (1) move a teacher to the next contract level, the “continuing” contract level; (2) retain the teacher at the same contract level; or (3) choose not to reemploy the teacher. As an annual contract teacher, the employee is required to complete a formal evaluation process. An annual contract teacher should not be moved to the continuing contract level, where the teacher is entitled to more extensive due process rights, unless the district is fully satisfied with the teacher’s overall performance. It should also be noted that a teacher who fails to successfully complete the formal evaluation process that accompanies an annual contract must be terminated and not be employed as a teacher in a public school in South Carolina for at least two years. S.C. Code Ann. § 59-26-40 states that teachers who are not recommended for reemployment under this type of contract may request a hearing before the Superintendent; the written decision of the Superintendent may be appealed to the board. The school board has discretion over whether to hear the teacher’s appeal.

Continuing Contracts

Once the teacher has successfully completed the formal evaluation process under the annual contract, the district may offer a teacher a continuing contract. The district has two options when it comes to the renewal of a continuing contract: (1) it can reemploy the teacher under his or her continuing contract or (2) it may not reemploy the teacher. Teachers on continuing contracts have rights under the S.C. Teacher Employment Dismissal Act (“TEDA”). If a continuing contract teacher is not reemployed, he or she may request a hearing before the board. It is important to keep in mind that if the Superintendent fails to notify the teacher in writing before May 1st, the teacher is considered reemployed as if the board renewed his or her contract.

DOCUMENTING PERFORMANCE ISSUES

There are a number of different types of “documentation,” and the following may prove to be useful to you in making personnel decisions concerning certified employees: (1) personal notes to the file made by an administrator after observing or talking with a teacher; (2) informal memos to the employee that are not copied to the personnel file; (3) attendance records, leave slips, grade book documentation, etc.; (4) formal letters of reprimand that are placed in the employee’s personnel file; (5) formal evaluation documents; (6) complaints from other staff and parents; and (7) summaries from classroom observations.

Keeping accurate documentation can minimize any misunderstandings about what was said in a conference and can bring the seriousness of a situation to the employee’s attention. The following is a non-exhaustive list of occurrences you may want to document: (1) specific incidents of misconduct; (2) feedback following an observation; (3) concerns that create a pattern of problems; and (4) summaries of conferences with the employee. When creating documentation, make certain the letters/memos that are sent to an employee are helpful—clearly define the problem; avoid making vague references to “my concerns about your performance” or “the incident that occurred in your classroom last week.” This will prevent potential miscommunication and help place the employee on notice that his or her behavior is not acceptable. Additionally, provide a timeframe for improvement and the possible consequences if improvement is not demonstrated. As always, watch spelling, punctuation and grammar; you never know who might be reading your letter.

There are many options available to districts when renewal decisions are made. Because due process rights increase at each subsequent contract level, resulting in a more complex nonrenewal process, districts should not move teachers to a higher contract level without giving careful consideration to whether retaining the teacher at the same contract level would give the district more of an opportunity to assess the teacher’s potential. In all cases, districts bear the burden of establishing that all State law requirements and State Department of Education guidelines have been met and that there are sufficient grounds to warrant contract nonrenewal. We wish you luck as you make these important decisions over the next month; if you have any questions, please do not hesitate to contact us.

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All I Want for Christmas is…a Refresher on Classified Employees

12/11/17

Unlike certified employees, specific procedures for the employment and dismissal of classified/noncertified employees are not detailed under South Carolina law. As a result, school districts across the State have varying policies and practices in place.  As we wrap-up the end of the calendar year, now is an appropriate time to review the various ways to handle classified employment matters and to determine whether any revisions should be made to applicable district policies.

What type of notice is required when hiring a classified employee?

            Classified employees do not have a statutory right to an employment contract or any statutory due process rights.  However, under the S.C. Payment of Wages Act, an employee must be given written notice of the terms and conditions of his or her employment. Those terms and conditions may be communicated to classified employees in a number of ways.  One option is to issue a one-time letter to the classified employee at the time of hire, specifying that the employment period is ongoing, unless the employee is terminated in accordance with district policy.  Another option is to issue the classified employee a letter at the time of hire specifying the employment period, such as nine months and, thereafter, on an annual basis, to issue a “letter of agreement” which specifies the employment period for the subsequent year. A third option is to issue the classified employee a letter at the time of hire specifying the employment period and, thereafter, on an annual basis, to issue a “letter of intent” indicating that the district intends to continue the employment for the subsequent year.

            The first option is used most often with twelve-month employees and allows the district to avoid re-issuing letters on an annual basis.  With this option, however, the employee’s expectation of indefinite employment is greater, and the district may bear the burden of establishing specific grounds to discontinue the employment relationship.  The “letter of agreement” option simplifies the process of discontinuing the employment at the end of each employment period when any reason to do so exists, including budget cuts and program changes.  As to the “letter of intent” option, the employee is clearly on notice that there is no expectation of continued employment for the subsequent year, allowing the district to discontinue the employment at any time, even prior to the beginning of the new employment period, if any reason to do so arises.  Whatever option is used, the letter to the employee should specify that the letter is not a contract and does not create any contractual rights or entitlements.

Who has the authority to discontinue employment and what procedures are required?

            State law does not specify who has the authority to discontinue the employment of a classified employee.  In most districts, that authority is delegated to the superintendent pursuant to board policy.  As a result, the notice to the employee regarding dismissal should come from the superintendent.  As a practical matter, the superintendent may wish to have the board subsequently affirm any termination or may simply inform the board of the dismissal decision.

            School boards are not required by state law to hear employee grievances or to grant a hearing request for classified employee terminations.  Most districts develop grievance policies that allow the board discretion when determining whether to grant a hearing.  Grievance policies also give school boards a limited opportunity to become involved in certain personnel matters where they otherwise would have no authority to get involved.  There are three ways that districts can choose to handle such grievances.  First, the board can enact no policy addressing employee grievances.  In this situation, consistency is key!  Without policy guidance, similar grievances must be carefully handled in a way that reflects uniformity for all employees and to avoid claims of discriminatory treatment and/or disparate impact.  The second option is for the board to develop a policy that authorizes the Superintendent to be the final decision-maker.  Under this policy, the board would still have no involvement, as the Superintendent would hear the grievance and make the final determination.  The last option includes board involvement.  Implementing a policy that allows for board discretion gives the board limited authority to hear employee grievances.  This type of policy should be drafted in a way that promotes discretion and does not allow every grievance an automatic hearing.

            Whatever procedures are followed with regard to the hiring and dismissal of classified employees, it is important to ensure that current board policies reflect the procedures actually being followed. If you have any questions about this article, please do not hesitate to contact us for assistance.  White & Story sincerely hopes that you have a happy holiday season!

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Legal Alert: Balancing Students' and Employees' First Amendment Protections in Light of Controversial Protests Against the American Flag and the Pledge of Allegiance

10/02/17

In 1917, President Woodrow Wilson wrote about the American flag" ... which we honor and under which we serve, is the emblem of our unity, our power, our thought and purpose as a nation." Alongside the flag, the "Pledge of Allegiance" has been heard echoing in school hallways for many decades after it was first published in 1892. Despite the historical significance of both, it is nearly impossible to tune into a local news station or scan news websites without hearing or learning of a recent event in which a person or group declined to recognize the flag or refused to stand for the Pledge. As a result, the question school districts grapple with concerns how to balance students' and teachers' First Amendment rights with the districts' interest in minimizing substantial and material disruptions of and interferences with the educational process.

As governmental entities, public school districts are subject to constitutional constraints. In the case of a public school employee or student refusing to stand for the Pledge or refusing to salute the flag, the application of the First Amendment, through the right of freedom of speech that it guarantees United States citizens, prevents a school district from compelling employees or students to stand and/or salute. Through its anti-retaliation protection, the First Amendment also protects citizens from adverse action by the government in response to an individual's exercise of his or her right to freedom of speech, including when that speech is symbolic, such as by the burning of a flag or the wearing of a garment containing a political message.

The United States Supreme Court spoke directly to the question of compelled "speech" in the case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), in which the Court held that students who had a religious objection to the "Pledge of Allegiance" based on their membership in the Jehovah's Witness faith could not be forced to salute the American flag and recite the Pledge in school. The Supreme Court explained that saluting the flag and saying the Pledge are forms of expression. Therefore, compelling a student to salute the flag and recite the Pledge, particularly in the face of a religious objection, violates that student's First Amendment rights to freedom of speech and freedom of religion.

South Carolina law, in S.C. Code § 59-1-455, reflects the Barnette decision, acknowledging the right of a student or other person to refrain from saying the Pledge at school activities. Specifically, the statute notes that "[a] person who does not wish to participate may leave the classroom, may remain in his seat, or may express his nonparticipation in any form which does not materially infringe upon the rights of other persons or disrupt school activities." Section 59-1 -455 continues to state that any person who exercises his or her right to refrain from saying the Pledge may not be penalized for failing to participate.

1 During fall 2016, the question whether an athlete should be compelled to stand during the playing of the national anthem received significant media attention, largely as the result of San Francisco 49ers quarterback Colin Kaepernick's refusal to stand for the Star-Spangled Banner. Of course, because a professional football team is a non-governmental entity and, therefore, not subject to the legal constraints that the First Amendment of the Constitution places on the government, the San Francisco 49ers were free to take whatever action they deemed appropriate in response to Kaepernick's actions. A similar occurrence happened most recently this month, when the #Take A Knee campaign grew, particularly in light of the current administration's remarks towards those athletes who chose not to stand for the national anthem. Similarly, students at Georgetown University allege that they were uninvited to attend U.S. Attorney General Jeff Sessions' lecture about free speech after the students publicized plans to protest his event.


The case of Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969), is further instructive on the issue of student expression. In Tinker, the Court held that a school could not punish students who were protesting the Vietnam War by wearing black armbands. The Court explained that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," continuing to make it clear that students have the right to express themselves through actions as well as words. The Court explained that, in order to take disciplinary action in response to a student's acts of expression, school officials must be able to prove that the conduct in question would "materially and substantially interfere" with school operations.

Concerning a public employee's right to freedom of expression, it is a well-settled principle of law that a school district may not retaliate against an employee for exercising his or her right to freedom of speech, so long as that speech involves a matter of public concern. In the case of Pickering v. Board of Education, 391 U.S. 563 (1968), the Court held that a public school teacher had the right to speak on issues of public importance and could not be dismissed from his or her position for that speech. Likewise, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that a public employee's speech about a matter of public concern is protected under the First Amendment, so long as the employee is voicing his or her opinion as a private citizen and not pursuant to his position as a public employee.

Certainly, we understand and empathize with the fact that there are many parents, students, and other citizens who find these types actions by students and/or employees inappropriate. We further understand that, in some extreme circumstances, there have been calls for a school district to either compel an employee or student to stand or take some punitive action against the individual. However, based on the above legal precedent, we do not believe that districts may lawfully require their employees and/or students to stand during the national anthem, nor may districts take any action against the employee or student that could be considered punitive and thus retaliatory.

Finally, if a district takes disciplinary action against an employee or a student, not only could the district be sued, but district employees and members of district boards also could be sued in their individual capacity. In such a case, trustees and employees ultimately could be personally responsible for covering the cost of any verdict returned against them by a jury. Generally, government officials are entitled to qualified immunity from any suit alleging a violation of an individual's civil rights where the official's alleged conduct "does not violate clearly established statutory or constitutional rights" about which a reasonable public official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, however, as noted above, the right of public school employees and students to freedom of expression has been well-settled since at least the 1960s, thus negating any argument that this issue is not "clearly established."

Should you have any questions about this legal alert, please do not hesitate to contact White & Story, LLC. Stay tuned for our Issue of Month concerning student discipline. 

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