Articles

TEN TIPS FOR DEALING WITH WORKPLACE PROBLEMS FOR EDUCATIONAL PERSONNEL

Employment Issues In Schools Are Not Academic

Phillip J. Trobaugh
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 800-401-6194
FAX: 612.339.3161

Employment law is burgeoning in educational institutions as legal issues continue to permeate the academic workplace. But for teachers, administrators, and other educational personnel, practical employment law issues are hardly academic. They present real life problems that often have to be confronted and overcome in order to preserve and maintain employment.

Disciplinary issues, including the ultimate sanction of termination, are arising with increasing frequency in academic facilities. They cover the whole gamut of employment law problems faced by others in the workplace. Legal issues in school settings often raise similar issues, but somewhat different considerations than in other workplaces. With students, teachers, and others soon to return to school after summer vacation, here are 10 tips for addressing employment issues in educational settings.

10. Public Parameters

Most employees of educational institutions work in the public sector. Unlike the private sector, special rules usually apply to governmental employees. Constitutional considerations, including Due Process, usually are applicable before the governmental employee can be terminated or otherwise disciplined. For those who belong to labor unions, "just cause" provisions in most collective bargaining agreements allow an employee to contest disciplinary charges, often through arbitration proceedings. At such hearings, the right to present evidence, the opportunity to confront witnesses, and other legal procedures usually are available and utilized before an employee can be discharged. These protections are often lacking in the non-unionized private sector.

9. Appellate Avenues

Most educational institutions, whether public or private, have pre-existing avenues to appeal disciplinary actions. Employees who are subject to discipline should familiarize themselves with applicable rules and regulations and be prepare to use them effectively. In contrast, most non-academic settings will not present the panoply of appellate avenues that exist for school personnel.

8. Fair Feelings

The desire to be "fair," or at least being perceived to be fair, pervades throughout academic institutions. School administrators, by nature and inclination, tend to have an outlook that seeks to insure that employees receive evenhanded treatment in connection with disciplinary action. This impulse seems to be greater in scholastic settings than elsewhere. Therefore, appeals to fundamental fairness, which often fall on deaf ears in many workplace settings, can be invoked with greater effectiveness in connection with school-related issues.

7. Collegial Contact

Most school personnel have close contact with colleagues. Collegiality is emphasized in academic settings more so than in other areas of employment. An employee facing disciplinary action should try to mobilize collegial support, including having supporters signing petitions, attend meetings, and otherwise lend and show their support to a beleaguered colleague.

6. Alumni Assistance

In addition to drawing upon support from colleagues, academic employees who face disciplinary action can call upon alumni to provide assistance. Students can often be an additional, and valuable, resource in helping to support a teacher or other school employee who is undergoing discipline unfairly. Their support should be coordinated with those of academic colleagues to attempt to persuade administrative personnel to retreat from unwarranted disciplinary action. This could come in the form of letters to the campus newspaper, attending hearings as either witnesses or supportive members of the audience, and petitions.

5. Publicity Pays

Most schools have a number of established channels of communication that can be called upon to generate publicity that can call attention to injustice in the workplace. A school employee who is facing discipline can utilize school newspapers, faculty newsletters, the campus radio station, and other media to help trigger support. Using the media in this way can pay off in persuading the decision-maker to modify or withdraw disciplinary action.

4. Record Retention

Academia is overrun with documentation. Administrators often attempt to construct a "paper trail" to be used as evidence in support of disciplinary action. The accumulation of paperwork can constitute a sizable hurdle for an employee to surmount, but employees are not powerless in the "blizzard" of paperwork. They can create their own memoranda and other records to support their position. Disputes should be contemporaneously documented, personal journals or diaries kept, copies of grades retained in case of a potential conflict with a student, and other "paper trails" created so that an employee has documentation to contest disciplinary charges.

3. Timing Troubles

Academic employees usually work on a different timetable than most others. Except in emergency situations, disciplinary action usually is undertaken in the spring in order to go into effect before the upcoming academic year the ensuing fall. This can be troublesome for employees who often find that they are unable to generate support during the summer, when most of their colleagues, students, and others may not be available. Therefore, prompt action should be taken when discipline is on the horizon in order to assure that timing does not become a troublesome problem for an employee facing discipline.

2. Data Disclosure

The manner in which other similarly situated employees have been treated often can be significant in disciplinary action against a particular academic individual. Because of the closely-knit world in which most school personnel exist, it usually is possible to gather information about others who have been treated in similar circumstances. Moreover, because many schools are public institutions, requests for data can be made under various public disclosure laws, such as the Minnesota Government Data Practices Act, in order to gather supporting evidence about the treatment of others that can be used in contesting disciplinary charges.

1. Settlement Syndrome

A formal discharge on an employee's record can often be devastating for an academic employee. In serious situations, teachers could risk losing their license if terminated for misconduct. Even in less calamitous cases, an employee who is fired from a school or college setting will find it particularly difficult to find re-employment in an academic setting. Therefore, it behooves an individual who is facing disciplinary action to consider reaching a negotiated settlement and resigning, rather than leaving a record of termination. There are numerous limitations on the ability of an employee to resign, rather than be terminated, but in many cases a settlement can be pursued. Administrative officials often will be willing to avoid the rigors and uncertainty of a legal challenge to disciplinary action by entering into a settlement agreement with an employee, sometimes accompanied with a severance payment. Characterizing termination of the employment as a resignation and avoiding documentation of discharge can be a great benefit to an employee in finding future employment.

Following these ten tips will not necessarily assure job security for individuals working in educational facilities. They can, however, maximize the ability of academic personnel to preserve and protect their rights in their unique workplace.

Phillip J. Trobaugh is an attorney with the law firm of MANSFIELD, TANICK & COHEN, P.A. His practice includes representation of a substantial number of teachers, administrators, and other educational personnel.

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