Clark Hill PLC Copyright 20091 THE BIGGEST MISTAKES MADE BY SCHOOL HR ADMINISTRATORS Clark Hill PLC December 3, 2009 By: Barbara A. Ruga 616-608-1105

Clark Hill PLC Copyright 2009 1

THE BIGGEST MISTAKES MADE BY SCHOOL HR

ADMINISTRATORSClark Hill PLC

December 3, 2009

By: Barbara A. Ruga616-608-1105 [email protected]


DOCUMENTATION ISSUES

• Date stamp – encourage district wide use• Anecdotal files and what constitutes the

personnel file under the ERKA and CBA• Maintaining copies of documents mailed

out with attachments• Keeping record of what district provided in

response to FOIA requests and/or requests for copies of personnel files


USING “OFF THE RACK” OR STALE JOB APPLICATION

FORMS


APPLICATIONS AVOID CLAIMS

• At-will language can prevent just-cause employment relationship claims.– Use with the few non-union staff you have.

• Non-discrimination language with 182 day accommodation language can reduce accommodation lawsuits.


APPLICATIONS CAN PREVENT LAWSUITS

• Language can require the employee to bring any lawsuit within 180 days.

• Proper language can prevent the employee from suing by requiring the arbitration of all disputes.


MAXIMIZING BACKGROUND CHECKS

• Ensure use MDE approved language to authorize all required and requested background checks. Ask about prior convictions in accordance with ELCRA.

• Application should also waive claims against former employers providing information.

• Employees must be informed that any false statements on the application can result in termination. Ask about prior discipline, dismissal, nonrenewal, etc.

• DO BACKGROUND CHECKS.– Caution: If you use a third party to perform the background check, you must follow

the FCRA.

• Consider: use FOIA for finalists…make sure you ask for ALL public records including but not limited to the personnel file, with respect to the particular applicant. – May want to use with all prior public employers or just those

where duration of employment appears suspect. • Be alert to clues/red flags.


IMPROPER USE OF OR NO EMPLOYEE HANDBOOKS


EMPLOYEE HANDBOOKS

• Handbooks can be the best friend of HR.

• A properly drafted Handbook can protect the employer from actions brought by a discharged non-union employee.

• Consider common template language for teacher handbooks and then allow individual building variation upon approval.


Key Provisions• Restate that employees are at-will, where applicable. • State that the employer does not discriminate on the basis

of any protected activity or status. • State that if an employee needs an accommodation, the

employee should request it in writing within 182 days. • Anti-Harassment Policy • Requirement to know and follow Board policies and where

policies can be found.• Professional Expectations, work rules, etc.


Failing to Stop or (Promptly) Investigate Workplace Harassment


Adopt a Policy• Without an anti-harassment policy, the employer

can be exposed to large jury verdicts.• State that harassment is forbidden and will be

punished.• Define sexual harassment and hostile work

environment.• Confirm Policy is not out-dated or fails to cover

all forms of illegal harassment.• At same time, avoid overly broad or vaguely

worded policies.


Policy Provisions

• Explain the complaint procedure.

• State that all claims will be investigated.

• Identify at least two management persons to whom complaints can be made.

• EEOC likes a remedy provision.

• PROHIBIT RETALIATION.


Aggressively Publicize the Policy

• Give and explain the policy to all new hires.

• Train supervisors (periodically) to recognize and stop harassment.

• Several times a year remind employees of policy and the complaint procedure.


A Proper Investigation Must be Conducted

• Initiate and complete investigation without undue delay.

• Interview the victim.• Interview the alleged harasser.• Interview all witnesses.• Train investigators in proper procedures.• Take appropriate corrective action.

– Even if inconclusive, document appropriately.


THE FAILURE TO REGULATEE-MAIL AND INTERNET USE


Adopt a Written Policy

• Specify the amount of personal use allowed, if any, and when it is allowed.

• Eliminate any employee expectation of privacy.

• Confirm that all computer files, e-mails and voice mails are the sole property of the District.


The Policy

• Inform that District can and will monitor computer usage. (on pop-up screen when sign on)

• Spell out all prohibited uses.

• Prohibit downloading certain materials without IT involvement.

• Other provisions…access to Internet…


FAILURE TO IDENTIFY PROTECTED ACTIVITY

Or How You Can Change a Routine Discrimination Case into a Costly Retaliation/Whistleblower Action


Protected Activity

• Filing a charge with a federal agency – – EEOC, OSHA, DOL, OCR

• Filing a charge with state agencies – – MDCR, MERC, MIOSHA

• Filing an internal complaint with a District official

• Requesting military or family leave


Protected Activity (cont’d.)

• Reporting internal financial misconduct.

• Requesting an ADA accommodation.

• Filing a Workers’ Compensation or Unemployment Benefits claim.

• Other “Whistleblowing” Activities.


Solution• Determine level of protected activity

– Before discipline or discharge.• Evaluate plausibility of claim.• Evaluate connection between activity and

employment action.• Make supervisors justify adverse employment

action where protected activity exists.• Document legitimate business reasons for

contemplated adverse employment action.• Consider timing of the employer’s adverse action.


FAILURE TO PROPERLY GUARD AGAINST OVERTIME CLAIMS


Misapplication of OT Exemptions

• Not all salaried employees are exempt from overtime pay.

• Focus on job duties, not titles.

• Periodic review of duties of salaried employees to ensure exemption.

• Believe that the FLSA applies to school districts!


Allowing Non-Exempt Employees to Work Through Lunch

• Any “work” permitted is compensable, even if not requested.

• An eight hour day plus a working lunch creates OT liability.

• Working at desk can go undetected.• Make sure principals and supervisors understand

their role in monitoring compliance with the law.– Practical ways to ensure compliance.– Discipline if do not comply.


Solutions

• Written rules – that are enforced.• Prohibit OT work without supervisor

approval.• Prohibit employees from showing up too

early.• Use discipline, if necessary (Pay the

overtime but can discipline for violation of Policy).


Documenting of Hours Worked

• It is employer’s obligation to keep accurate time records.– Need valid proof of hours worked.

• Failure to do so benefits employees.

• Best practice – record hours of all employees, even exempt. (May help with FMLA claims.)


Losing the OT Exemption

• Improper classification

• Improper docking of pay

• Salary Policy


GETTING CAUGHT IN FMLA TRAPS


Employer Liability for Violations• Any wages, salary, employment benefits or other

compensation lost by the employee as a result of the violation.

• Actual monetary losses of employee, if any (up to a 12-week cap).

• Interest on the damages.• Liquidated damages – which can equal compensation

lost or actual monetary losses.• Reinstatement, promotion or other equitable remedies.• Reasonable attorney fees, reasonable expert witness

fees and other litigation costs.


Common FMLA Mistakes

• Failure to provide employee notice that leave qualifies and will be counted as FMLA leave.

• Failure to recognize that an employee has made a request for FMLA leave.

• Failure to run FMLA leaves concurrent with other leaves – paid or unpaid.

• Failure to properly utilize Federal Employer Response Form.

• Failure to require employee to provide a completed Certification of Health Care Provider form.


Common FMLA Mistakes (cont’d.)

• Failing to require employees to schedule foreseeable FMLA leave without disruption to employer’s operations (subject to CBA)

• Failure to return employee to the same or equivalent position

• Terminating an employee who does not return following an FMLA leave (check for ADA coverage and other issues)


POORLY TRAINED OR BADLY BEHAVING SUPERVISORS


Supervisors Must

• Know the law and District philosophy regarding employment issues

• Be a team leader/role model – exhibit professional conduct

• Treat employees with respect and dignity• Treat employees fairly• Uniformly enforce the District’s rules• Never lose their cool or “go postal”


• Keep performance issues focused upon job criteria

• Be positive about the District

• Recognize themselves as an agent of the District – what they say can bind

• Properly document violations

• Use good judgment

Supervisors Must (cont’d.)


Liability Concerns

• “Old School” supervisors• Hugging, grabbing affectionate supervisors• Lazy supervisors – who allow violations to

occur• Management tolerating unprofessional

conduct by supervisors • Management tolerating inconsistent conduct

or lax enforcement


Training of Supervisors Must Occur on a Variety of Topics

• Work rule violations• Harassment/discrimination charges• Witness interviews• Spotting protected activity• FMLA requirements• Anti-retaliation requirements• Avoiding ULPs • Evaluating teacher performance


HAVING OR ALLOWING AN AFFAIR IN THE WORKPLACE


Workplace Affairs

• Recognize poor relationship odds

• Recognize ease of solution

• Consider written policy prohibiting subordinate “dating”

• Consider “love contracts”?


IMPROPER DISCIPLINE AND DISCHARGE PROCEDURES


• Must be a rule violation, CBA violation, conduct or performance issue

• Need legitimate investigation• Are the facts supporting the decision

objective?• Are they disputed?• Get employee’s side of the story – due

process


• Follow any applicable District procedures, and right to union representation

• Discipline is designed to correct improper behavior and discourage repetition – NOT to punish (with some exceptions);

• Immediately inform the employee of the rule infraction

• Document the violation and the discipline


Importance of Documentation

• Impact of inaccurate, incomplete or no documentation

• Avoid reliance on assumptions and hearsay• Proper documentation will help prevent

cases from materializing• Proper documentation will help win

arbitration cases• Documentation must be credible


A Discipline/Termination Check List

• The following questions should be asked or the following issues considered and addressed, before any discipline or discharge is handed out:– 7 part just cause test – Is the action consistent with past discipline/termination in similar

situations?– Can the decision be substantiated with objective criteria (or is it

based upon a subjective interpretation)?– To what extent did the decision maker rely upon information

supplied by others – how reliable is that information?– Are the facts supporting the action well documented: is there a

good paper trail?


– Was the employee interviewed to get his/her side of the story (critical admissions)? With union representative, where applicable?

– Was the employee honestly aware of the applicable performance standards, work rules or other policies? Can you prove it?

– Will the employee (or the union) be surprised by the action taken?

– Review the employee’s job history.

A Discipline/Termination Check List (Cont’d.)


– Have the requirements for poor work performance or insubordination been satisfied?

– Was progressive discipline used or considered?– Have all appropriate employer procedures been

followed? – Have the appropriate levels of management

reviewed and approved the decision? – Was action taken promptly given all the facts

and circumstances?



– Does the discipline/punishment fit the crime?– Are there potential statutory problems? – Will the action appear harsh in view of other

events/mitigating circumstances?– Does the personnel file documentation support

the action?



HANDLING GRIEVANCES


– Ask questions of grievant to fully understand facts, claimed evidence and arguments.

– Hold to contract procedure and follow it yourself.

– Preserve timeliness defenses and procedural objections at all levels.

MAXIMIZE USE OF GRIEVANCE PROCEDURE


FAILING TO TIMELY CONSULT WITH OTHERS WHERE IT

WOULD BE HELPFUL


• Your Superintendent!

• Supervisors/Managers

• In House counsel, where applicable• Outside school labor attorney

• Other colleagues or labor arbitration cases


THE BIGGEST MISTAKES MADE BY SCHOOL HR

ADMINISTRATORSClark Hill PLC

By: Barbara A. Ruga

December 3, 2009

Note: This document is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of an attorney.

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Clark Hill PLC Copyright 20091 THE BIGGEST MISTAKES MADE BY SCHOOL HR ADMINISTRATORS Clark Hill PLC December 3, 2009 By: Barbara A. Ruga 616-608-1105