In this series, we’ve been covering the major talking points from Kirk Strang’s presentation on school district governance at this year’s WASDA Summer Legal Seminar.
Thus far, we’ve covered:
- Part 1: New Laws Enacted
- Part 2: New Laws Proposed
- Part 3: Developments in Federal & Constitutional Law
- Part 4: Annual Meeting (School Board)
Upcoming installments include:
- Part 6: Student Handbooks/Codes of Conduct
- Part 7: Vendor Contracts — Legal Capacity to Contract
- Part 8: Vendor Contract Clauses — Specifics to Examine & More
In this edition of the series, we’re covering the topic of employee handbooks, including information pertaining to handbook essentials, job security, grievance procedure, FMLA, and more.
Let’s get started with Part 5 …
HANDBOOK ESSENTIALS
- The Employee Handbook is not a contract.
- The district reserves the right to revise the handbook, from time to time, including during the school year.
- The district reserves the right to interpret the terms of the handbook.
- In the event of a conflict between handbook language and board policy, board policy will control.
JOB SECURITY
- The Employee Handbook is, at times, not fully consistent with other authority. Ensure that the level of job security granted by the handbook is in line with board policy and the individual employment contract.
- Identify who has the authority to terminate support staff. Generally, the District Administrator should have this authority.
- Define the phrase “full-time teacher.” Do you want a teacher who has 90% FTE to be considered full time for purposes of applying other handbook/policy provisions, e.g., granting nonrenewal procedures?
GRIEVANCE PROCEDURE
- Decide whether nonrenewal is subject to the grievance procedure. I recommend that a school district does not guarantee access to the grievance procedure for a nonrenewal in every case. Instead, provide that the district — in its discretion — may authorize access to the grievance procedure when it determines doing so is appropriate.
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Identify the information that must be included in a grievance in order for the grievance to proceed. For example, consider including the following language:
The Impartial Hearing Officer may elect to issue a written decision in lieu of conducting a hearing if the employee’s written grievance fails to identify the specific board policy, handbook provision, or contract provision alleged to have been violated.
- Establish a reasonable standard of review. Do not tie your school board members’ hands. The school board should reserve the right to determine the appropriate procedure for review of an Impartial Hearing Officer’s decision.
FMLA
- Ensure that your handbook has the required Notice of employees’ rights under Wis. Stat. 103.10 “Family or Medical Leave.” State statute requires that a school district display the Notice approved by the Equal Rights Division (ERD-7983). A link to this Notice should be included in the handbook.
TIPS AND NOTES
- Incorporate the Handbook Clearly. It may not be a contract, but the handbook is there for a reason. Make specific reference to any specific provisions of the handbook that are meant to be a part of employees’ contract to draw clear distinctions between material that is meant to be part of the contract and the remaining materials that reflect the district’s general guidance on various employment subjects.
- Handbook Limitations. Remember what a handbook cannot do. A handbook cannot, e.g., create an agreement to be paid over 12 months, a binding layoff provision that does not follow Wis. Stat. 118.22, or impose liquidated damages.
- Review and Evaluate. Review your handbook and professional contracts every year.
- Grievance Procedure Coverage. The grievance procedure should be specifically adopted by board policy as well as appear in the handbook. A school district that treats lower-level discipline as non-grievable does so at its peril because doing so essentially brands such action non-disciplinary. This can return to haunt the district if the employee claims that they have a clean record (because lower-level discipline does not count as disciplinary action).
Next up in our series, we switch from employee handbooks to student handbooks and codes of conduct.
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