Transcript Document

LAYOFF, RECALL &
NEGOTIATIONS IN THE
ERA OF SCHOOL
REFORM
MASPA
CLARK HILL PLC
BARBARA A. RUGA
January 30, 2013
CLARK HILL PLC
Barbara A. Ruga
CLARK HILL PLC
616-608-1105
[email protected]
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HOW FREEDOM TO
WORK IMPACTS
MICHIGAN PUBLIC
SCHOOLS
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Union Security Provisions
 Three types of provisions:
 A “Closed Shop” agreement requires employers to hire only persons
who are union members. This clause is and has been illegal under both
federal and state law.
 A “Union Shop” agreement is one in which employees are required as a
condition of continued employment to become members of the union
and pay dues within a certain period after being hired. This is permitted
under federal law for private-sector employers, and was permitted under
state law until the passage of PA 348 of 2012.
 An “Agency Shop” agreement is one in which employees are required as
a condition of continued employment to either become union members
or pay the union a service fee. Agency Shops are permitted under
federal law, and were permitted for both private-sector and publicsector employers until passage of PA 349 of 2012.
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Michigan’s Freedom-To-Work Statutes
 Public Act 348 of 2012 amends Michigan’s Public Employment
Relations Act to add Freedom-To-Work language which covers
private employers.
 Public Act 349 of 2012 amends Michigan’s Employment Relations
Commission statute to add Freedom-To-Work language which
covers public employers.
 Note that dues check-off provisions are not union security
clauses, and are currently permitted by virtue of a federal district
court order enjoining PA 53 of 2012, which amended PERA and
made it illegal for public school employers to deduct union dues.
Bailey, et al. v Callahan, 12-CV-11504 (E.D. Mich, June 11, 2012).
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What The Acts Prohibit
An individual shall not be required as a condition of
obtaining or continuing employment to do any of the
following:
(a) Refrain or resign from membership in, voluntary affiliation with, or voluntary
financial support of a labor organization.
(b) Become or remain a member of a labor organization.
(c) Pay any dues, fees, assessments, or other charges or expenses of any kind or
amount or provide anything of value to a labor organization.
(d) Pay to any charitable organization or third party an amount that is in lieu of,
equivalent to, or any portion of dues, fees, assessments, or other charges or
expenses required of members of or employees represented by a labor
organization. 2012 PA 348 at (1)(a)-(d), and 2012 PA 349 at 10(3)(a-(d).
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The Acts Also Prohibit
An employee or other person shall not by force,
intimidation, or unlawful threats compel or attempt
to compel any person to do any of the following:
(a) Become or remain a member of a labor organization or otherwise affiliate with
or financially support a labor organization.
(b) Refrain from engaging in employment or refrain from joining a labor
organization or otherwise affiliating with or financially supporting a labor
organization.
(c) Pay to any charitable organization or third party an amount that is in lieu of,
equivalent to, or any portion of dues, fees, assessments, or other charges or
expenses required of members of or employees represented by a labor
organization. 2012 PA 348 at (9)(2)(a)-(c), 2012 PA 349 at (17)(1)(a)-(c).
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Another Prohibited Subject
Compliance with section 10(3) of PERA
is a new prohibited subject.
MCL §423.215(3)(q).
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Police and Fire Exemptions Under PERA
* The prohibitions in PERA do not apply to:
(i) A public police or fire department employee or any
person who seeks to become employed as a public
police or fire department employee as that term is
defined under section 2 of 1969 PA 312, MCL 423.232.
(ii) A state police trooper or sergeant who is granted
rights under section 5 of article XI of the state
constitution of 1963 or any individual who seeks to
become employed as a state police trooper or sergeant.
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Effective Date
 An agreement, contract, understanding, or practice
between or involving an employer and a labor
organization that violates the Freedom-To-Work law is
unlawful and unenforceable as of the effective date of
the acts.
 The amended acts apply only to an agreement,
contract, understanding, or practice that takes effect or
is extended or renewed after the effective date of the
2012 amendatory act that amended this section.
 The effective date of the Acts is March 28, 2013.
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Penalties
Violation of the Acts can result in:
 A civil fine of not more than $500.
 A civil action by an injured person;
 For damages and an injunctive relief.
 Cost and reasonable attorney fees for the injured person.
 These remedies are independent of and in addition to other
penalties and remedies prescribed in the acts.
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What Will Change
 Employees may choose not to join the union or pay union
dues.
 Employees may choose to continue membership in the union
or pay union dues.
 Employees who are not members of the union may not be
compelled to pay service fees in lieu of dues.
 The employer may only deduct dues if an employee
voluntarily authorizes their deduction.
 There shall be no disciplinary consequences or loss of
employment due to a failure to pay dues or a service fee.
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More Implications
 Dues check-off provisions (voluntarily authorized)
are currently enforceable and do not violate the
Freedom-To-Work laws.
 Absent an agreement in place before March 28,
2013, upon expiration of a current contract, or in
ratifying a successor contract, employers should
not permit dues/service fee check-off if an
employee has withdrawn from the union and
objects to paying union dues/service fee.
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Are Non-Union Employees Covered by the CBA?
 All employees who are in positions covered by the
collective bargaining agreement are governed by the
CBA.
 The employer cannot change wages, hours or working conditions for
those employees who are performing bargaining unit work but are not
members of the union.
 The union must fairly represent employees who have not joined the
union, including processing grievances.
 The union cannot charge the employee a representation fee.
 The employer must continue to provide benefits required by the CBA.
 The employer cannot engage in separate negotiations or “direct
dealing” with non-members about mandatory terms and conditions of
employment.
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What Are the Union Rights of Non-Dues Paying
Employees?
 A union may prevent non-dues paying employees from:
 Holding union offices;
 Being on the bargaining committee;
 Voting for CBAs; and
 Voting on strikes (in the private sector).
 Union by-laws in existence when Act was passed may
control when a member may resign upon effective date of
Act.
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If a Majority of Employees Stop Paying Dues Can
the Employer Withdraw Recognition of the Union?
 Under current law, an employer may unilaterally withdraw
recognition of the union if the employer bases the withdrawal
on the union's actual and demonstrable loss of majority support.
Withdrawal of recognition cannot merely be based on the
employer's “good-faith reasonable doubt” or uncertainty that
the union has majority support.
 Under federal law a court has upheld an NLRB ruling that the
fact that a majority of employees has refused to join the union or
pay union dues does not demonstrate an actual loss of majority
support. See Terrell Machine Co. v. NLRB, 73 LRRM 2381 (4th Cir.
1970).
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To Extend or Not to Extend
 Things to consider in answering this question:
 Benefit to the union:
 Do the math -- multiply the dues amount by the number of members that
may withdraw by the number of years’ extension; this is the financial
value to the union of the extension;
 Cohesiveness/authority of leadership and membership through the
extension; this is the value to the local leadership of the extension.
 Benefit to the employer:
 Importance of concessions extracted in exchange for extension.
 Caution about the impact of premature extensions of
existing contracts:
 PA 152
 prohibited subjects.
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To Extend or Not to Extend
Dilemma:
Given future uncertainties, difficult to
gauge the benefits of short-term
concessions as trade for an extended
agency shop clause as compared to the
overall impact of the unions’ loss of agency
shop fees across the state over time.
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Questions
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LAYOFF & RECALL
Section 1248 of the
Michigan Revised School
Code
Policy Goal
Governor Snyder,
upon signing 2011 PA 100-103.
 “Making staffing decisions based on merit and performance
encourages good teachers to keep doing what they are doing
and helps ensure students receive the highest quality education
… protect outstanding teachers who are enthusiastic about the
material and able to connect with students in a way that makes
them want to learn.”
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WHY IS THIS ISSUE IMPORTANT?
 Goal to retain most effective teachers.
 Mandated by School Code.
 High stakes personnel decision.
 Impacts your employees’ lives and well-being.
 Litigation Risk.
 Circuit court under section 1248.
 Tenure Commission albeit limited jurisdiction.
 EEOC claims.
 Public confidence in our ability to manage new flexibility in
a positive manner which actually enhances student
learning.
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New Statute - Research-Based
 “The Case Against Quality-Blind Layoffs”
 tntp.org , February 2011
 “A Smarter Teacher Layoff System”
 tntp.org , 2010
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The Research Says…
 As of Feb 2011, 39% teachers worked in states where
seniority was only permitted factor for layoffs.
 80% of seniority-based layoffs led to better teachers
leaving classrooms and worse teachers staying.
 Novice teachers not always the least effective.
 When less effective teachers are retained and more
effective laid off, students lose 2.5 -3.5 months of
learning; high poverty schools affected the most
 Less senior teachers at high poverty schools.
 More teachers laid off when lay off only on seniority.
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Teachers Said…
 74 -77% of teachers said additional factors
should be considered
 Teachers supported use of classroom
management and attendance
 Poor classroom managers and teachers
who are absent put burden on colleagues
who pick up the slack and help substitutes
in absence of regular classroom teacher
 Source: A Smarter Teacher Layoff System, TNTP 2010
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THE RULES
APPLICABLE ONLY TO TEACHERS
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School Code Section 1248
Sec. 1248. (1) For teachers, all of the following apply to
policies regarding personnel decisions when conducting a
staffing or program reduction or any other personnel
determination resulting in the elimination of a position,
when conducting a recall from a staffing or program
reduction or any other personnel determination resulting in
the elimination of a position, or in hiring after a staffing or
program reduction or any other personnel determination
resulting in the elimination of a position by a school district
or intermediate school district.
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Section 1248 Mandates Board Policies
The board of a school district or
intermediate school district shall
ensure that the school district or
intermediate school district adopts,
implements, maintains, and
complies with a policy …based on
retaining effective teachers.
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No Protection for Ineffective Teachers
 The policy shall ensure that a teacher who has
been rated as ineffective under the performance
evaluation system under section 1249 is not given
any preference that would result in that teacher
being retained over a teacher who is evaluated as
minimally effective, effective, or highly effective
under the performance evaluation system under
section 1249.
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Tenure Act Also Amended
§ 38.82a. Probationary teacher rated as effective or
highly effective; displacement.
Sec. 2a. A probationary teacher who is rated as effective
or highly effective on his or her most recent annual yearend performance evaluation under section 1249 of the
revised school code, 1976 PA 451, MCL 380.1249, is not
subject to being displaced by a teacher on continuing
tenure solely because the other teacher has continuing
tenure.
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1248 Defines “Effectiveness”
 Effectiveness shall be measured by the
performance evaluation system under section
1249,
 and the personnel decisions shall be made based
on the following factors:
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Mandated Layoff Criteria
* INDIVIDUAL PERFORMANCE shall be the majority factor :
* Evidence of student growth – predominant factor
* The teacher's demonstrated pedagogical skills,
* a special determination concerning the teacher's knowledge of his
or her subject area
* the ability to impart that knowledge through planning, delivering
rigorous content, checking for and building higher-level
understanding, differentiating, and managing a classroom;
* consistent preparation to maximize instructional time.
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Individual Performance
 The teacher's management of the
classroom, manner and efficacy of
disciplining pupils, rapport with parents and
other teachers, and ability to withstand the
strain of teaching.
 The teacher's attendance and disciplinary
record, if any.
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Additional Criteria
* Significant, relevant accomplishments and
contributions.
* This factor shall be based on whether the individual
contributes to the overall performance of the school by
making clear, significant, relevant contributions above the
normal expectations for an individual in his or her peer
group
* and having demonstrated a record of exceptional
performance.
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Final Statutory Criterion
* Relevant special training.
* This factor shall be based on completion of
relevant training other than the professional
development or continuing education that is
required by the employer or by state law, and
integration of that training into instruction in a
meaningful way.
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Tenure & Seniority
 …length of service or tenure status shall not be a factor
in a personnel decision described in subdivision (a) or (b).
 However, if that personnel decision involves 2 or more
employees and all other factors distinguishing those
employees from each other are equal, then length of
service or tenure status may be considered as a
tiebreaker.
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THE TOOLS
The Michigan Legislature Provided The Tools
To Ensure That The New Layoff Rules Would
be Feasible for Public School Employers.
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Prohibited Subject
 (k) Decisions about the development, content, standards,
procedures, adoption, and implementation of the public school
employer's policies regarding personnel decisions when conducting a
staffing or program reduction or any other personnel determination
resulting in the elimination of a position, when conducting a recall
from a staffing or program reduction or any other personnel
determination resulting in the elimination of a position, or in hiring
after a staffing or program reduction or any other personnel
determination resulting in the elimination of a position, as provided
under section 1248 of the revised school code, 1976 PA 451, MCL
380.1248, any decision made by the public school employer pursuant
to those policies, or the impact of those decisions on an individual
employee or the bargaining unit.
 PERA, section 15(3)(k).
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Another Prohibited Subject
 (l) Decisions about the development, content, standards,
procedures, adoption, and implementation of a public
school employer's performance evaluation system adopted
under section 1249 of the revised school code, 1976 PA 451,
MCL 380.1249, or under 1937 (Ex Sess) PA 4, MCL 38.71 to
38.191, decisions concerning the content of a performance
evaluation of an employee under those provisions of law, or
the impact of those decisions on an individual employee or
the bargaining unit.
 PERA, section 15(3)(l).
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Sole Authority To Act
 …the matters described in subsection (3) are
prohibited subjects of bargaining between a
public school employer and a bargaining
representative of its employees, and, for the
purposes of this act, are within the sole
authority of the public school employer to
decide.
 PERA, section 15(4).
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WHAT TO DO?
Procedural Compliance
Substantive Compliance
Practical Implementation
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Procedural Compliance
 Adopt Board Policy Before Make Layoff & Recall Decisions.
 Adopt Administrative Guidelines operationalizing
substantive criteria and detailing procedures.
 Develop/Use Performance Evaluation System That Complies
With Tenure Act & Section 1249 of School Code & Embeds
Section 1248 Criteria.
 Train, Train, Train.
 Modify and improve all of the above with experience and
results of litigation.
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Substantive Compliance
 Collect the data through your performance
evaluation system.
 Embed section 1248 (layoff) criteria.
 Use precise statutory language in your rubrics or
align rubrics with statutory language.
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Performance Evaluation System Measures
Mandated Criteria
 Student Growth.
 Composite of national, state or local assessments & other objective
criteria.
 MDE Nov 2012 Report.
 K-1: Local, DIBELS, MI Literacy, Work sampling, NWEA.
 2-5: State (4-5), local, DIBELS, Work sampling, MI Literary, NWEA.
 6-8: State, Local, ACT Explore, Work sampling, NWEA.
 9-12: End-of-course assessment, ACT Plan, Work sampling, other,
NWEA.
 Student Learning Outcomes on the horizon?
 MCEE website; Jennifer Hammond Blog.
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Does Your Evaluation System Rate:
 Pedagogical Skills.
 Special determination concerning the teacher’s
knowledge of his or her subject area.
 Ability to impart subject area knowledge through
planning.
 Delivering rigorous content.
 Checking for and building higher-level understanding.
 Differentiating.
 Consistent preparation to maximize instructional time.
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How Does your District Measure:
 Management of the classroom.
 Manner and efficacy of disciplining pupils.
 Rapport with parents and other teachers.
 Ability to withstand the strains of teaching.
 Attendance and discipline.
 Not FMLA or ADA-protected absences.
 Not absences due to religious observances.
 What about contractually approved
absences?
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Significant Relevant Accomplishments
 Whether employee contributes to overall
performance of the school by making:
 Clear, significant, relevant contributions;
 Above the normal expectations for his/her peer
group; &
 Having demonstrated a record of exceptional
performance.
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Special Relevant Training
 Completion of relevant training other than:
 PD or continuing education required by district
or state law; and
 Integration of that training into instruction in a
meaningful way.
 Rubric.
 Quantify training.
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How to Operationalize …
 Identify significant accomplishments and
contributions.
 Ask teacher/evaluator?
 Create your own list of what your district will “count.”
 Identify relevant special training.
 Not required by district or state.
 Ask teacher to demonstrate how integrated into
instruction in a meaningful way.
 Identify what your district will include.
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Practical Implementation
Effective Teacher Evaluations
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Individualized Development Plan
 Probationary teachers and teachers rated
Minimally Effective or Ineffective.
 Within IDP, describe growth needed in areas
used to determine layoff and recall.
 The statutory criteria are synonymous with
effective instructional practice.
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IDP CONSULTATION REQUIREMENT
 Consult with teacher about IDP content
 BEST PRACTICES for documenting same.
 Include opportunities for improvement
within the IDP.
 Relevant coaching.
 Instructional support.
 Professional Development.
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OBSERVATIONS
 Probationary – locally determined number.
 Tenure - multiple.
 4 to 6 if discharge.
 Multiple observers.
 Multiple measures.
 No specific duration required but ….
 Exception to multiple if Effective or Highly Effective 2
consecutive years.
 Document observations – pedagogical skills and
classroom management.
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Content of Observation
 Review lesson plan.
 Curriculum standard being taught.
 Observe and document pupil engagement.
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Mid Year Progress Report
 Review and modify IDP if needed.
 Review student growth data.
 Be direct with teacher about needed growth in
instructional practice.
 Be specific and concrete about how to demonstrate
that growth.
 Give a specific timeline on when progress must be
demonstrated.
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CHECKLIST - PROBATIONARY
 2012-2013.
 Annual Evaluation with student growth sig.
factor.
 IDP.
 No. of observations locally determined.
 Final Year End Evaluation includes written
assessment of IDP goal progress.
 Notice of non-renewal not later than June 15 or 15
days before end of anniversary year.
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CHECKLIST- TENURE – 2012-2013
 Annual Evaluation with student growth sig.
factor.
 IDP if rated ME or Ineffective 2011-12.
 No more than 180 calendar days to demonstrate
progress.
 Multiple Observations.
 MYPR; encourage mentor.
 Final Year End Evaluation assessing IDP goal
progress in writing.
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Identify Personnel Reduction
 May limit layoff notices to affected staff.
 Identify excess staff, not layoff by seniority.
 Consider transfers.
 Establish internal committee to review
recommended layoffs to ensure compliance with
criteria.
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In Lieu of “Seniority Lists”
 Create lists of teachers ranked by overall rating on teacher
evaluation system.
 Student growth + evaluation tool + attendance and discipline
= majority factor of individual performance.
 Significant Relevant Accomplishments.
 Special Training.
 Tenure Status.
 Length of Service.
 Create a chart where apparently equal to determine who
should be laid off.
 If equal, use tenure and then seniority status.
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Bumping?
 Up to District.
 District may wish to reserve right to transfer
teachers who are Effective or Highly Effective who
would otherwise be laid off to assignments held by
Minimally Effective or Ineffective teachers.
 If certified and highly qualified.
 Think long and hard about “bumping.”
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New Layoff Hierarchy?
 Ineffective Probationary Teachers if not exited through the nonrenewal process.
 -Ineffective tenured teachers.
 -Minimally Effective probationary teachers.
 -Minimally Effective tenured teachers?
 Caveat: only ineffective tenure teachers not protected.
 Litigation risk – ample opportunity to improve.





-Effective probationary teachers.
-Effective tenured teachers.
-Highly Effective last to go unless in unique position.
By points or rating categories.
Within subjects, classes, grades or programs where need to reduce
exists.
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Timelines
 Coordinate date evaluations are due with
when layoff decisions must be made.
 When will student growth data be available?
 No Tenure Act timeline, however, must still
give notice of right to appeal to Tenure
Commission.
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Appeals
 Ineffective tenure teachers have statutory right to appeal
their effectiveness rating to the superintendent twice
within a three consecutive year period.
 Internal committee confirm compliance with District’s
performance evaluation system.
 Consider disparate treatment issues.
 Monitor for possible retaliation claims.
 i.e., protected activity right before being laid off.
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Protected Characteristics
 Race, color, creed, national origin, religion.
 Gender, sexual harassment, pregnancy discrimination.
 Age.
 Disability.
 Marital status, height, weight.
 Genetic characteristics.
 Most common concerns in a RIF: age, gender, race.
 Any of the above can create exposure in other allegedly
“adverse” personnel decisions.
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Minimally Effective tenured teachers?
 Was teacher given an “ample opportunity to improve?”
 Look at IDP.
 Was a specific timeline spelled out for demonstrating progress
toward the IDP goals?
 Resources provided:
 Professional development.
 Coaching.
 Instructional support.
 Multiple observations.
 Appeal or internal review.
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Exposure/Tolerance Ratio
 Assess level of risk and risk tolerance.
 Assess your confidence in fidelity to your
performance evaluation system.
 Assess your confidence in consistency and
uniformity of measures applied.
 Transfers.
 Layoff & Recall.
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Other Preventive Measures
 Communicate and post anti-discrimination,
harassment and retaliation policies and
procedures.
 Encourage their use.
 Investigate complaints promptly and
thoroughly.
 Remedy if appropriate to do so.
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Recall Rights
 Section 105 eliminated.
 Recall rights determined by Board policy
and guidelines.
 Specify recall procedures within guidelines.
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Takeaways
 Understand scope of new flexibility.
 Align evaluations to layoff & recall criteria.
 Train, train, train.
 Stay on top of emerging court and agency decisions.
 Modify policies and regulations as needed.
 Use internal review process to assess risk before
issue layoff notices.
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Questions
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Thank You.
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.
Barbara A. Ruga
[email protected]
(616) 608-1105
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CLARK HILL COPYRIGHT 2013
Please Do Not Re-Distribute
Without Permission. Thank you.
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