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!