Negligence

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School Law for Teachers
Teacher's Rights
J.L. Gibble, D. Ed Winter 2002
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What you should learn

• Three types of rights and their limits
• i.e. Limits on speech
• Reasonable workplace searches
• Limits of privacy expectations
• Statutes FMLA, Title VII, 504, ADA, ADEA, IRCA,
  FLSA, Local Agency Law, Tenure

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Rights - from whence do they come?

• Public employees have rights conferred by
• State and federal constitutions
• State and federal laws and regulations
• Contracts

The Big Three
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You cant do that!

• No adverse employment action based on exercise of
  constitutional rights
• Employer needs to show legitimate reasons

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Constitutional rights

• Free speech
• Freedom of association
• Free exercise of religion
• Search and seizure
• Freedom from self incrimination
• Right to privacy

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Free speech

• Right to free speech NOT absolute
• Must show compelling state interest to overcome
  an employees right to speak on issues of public
  concern

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What is speech?

• Not just verbal
• Written
• Symbolic expression

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Protected speech

• Public concerns are protected
• Personal concerns are not

States interests in efficient public service
Teachers free speech interests
Balance
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Public concerns examples

• Comments on instructional methods, curriculum,
  administrative or board action
• Political or social advocacy outside of work

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Unprotected speech examples

• Personal attacks
• Grievances and complaints about personnel actions
• Real threats

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Is it disruptive speech?

• Employee may be disciplined if the speech
• Impairs ability to perform duties
• Disrupts school
• Undermines supervisory authority
• Destroys working relationships

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Freedom of association - membership

• Cannot ban members of controversial organizations
  from employment

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Freedom of association - loyalty oaths

• May be required to pledge support of Constitution
  
• Cannot require to disavow membership in groups
  that espouse overthrow of Government

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Free exercise of religion

• Generally, no adverse employment action because
  of religion
• Employee can be required to comply with neutral
  rule of general applicability
• Employees right to a belief v. schools
  interests
• Employer cannot engage in establishment of
  religion

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Accommodation under Title VII

• Schools must reasonably accommodate an employees
  religious observance, provided no undue hardship
  occurs on the schools part

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Search and seizure

• "The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated..." Fourth Amendment

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Reasonable searches

• Schools need to discover v. degree of intrusion
• More intrusive the search, more need to justify

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Workplace searches

• Employees have a reasonable expectation of
  privacy in their offices
• Searches must be reasonable

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Urinalysis

• Type of search
• Most common form of drug testing
• Can be required of employees in safety sensitive
  positions

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Alcohol and drug testing

• Federal law requires testing of commercial motor
  vehicle operators
• Includes school bus drivers

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Self-incrimination

• Applies only in judicial matters
• Cannot be used at dismissal hearing
• Employee required to answer questions about
  employment

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Right to privacy

• Examples include
• Procreation
• Marriage
• Rearing of children
• Activities within home
• Cannot use as a decision base unless it causes
  unreasonable disruption

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Federal statutory rights

• Title VII
• Section 504 ADA
• Family and Medical Leave Act
• Equal Pay Act
• Age Discrimination in Employment Act
• Immigration Reform and Control Act
• Fair Labor Standards Act

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Title VII of the Civil Rights Act

• No discrimination based on race, color, religion,
  gender, or national origin
• Can use classification if a bona fide
  occupational qualification

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Title VII - burden of proof

• Plaintiff must make out a prima facie claim of
  discrimination
• Employer may rebut by proferring a legitimate,
  nondiscriminatory reason

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Section 504

• Prohibits discrimination against otherwise
  qualified person with a disability in federally
  assisted programs
• Must make reasonable accommodations
• Not required to lower or modify standards

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Americans with Disabilities Act

• Prohibits discrimination on the basis of
  disability in
• employment
• public services
• public accommodations
• telecommunications
• public transportation
• Must make reasonable accommodations

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Family Medical Leave Act

• 12 weeks of unpaid, job-protected leave for
• Employees own health
• Care for sick family members
• Birth or adoption

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FMLA issues

• Definition of serious health condition
• Medical certification
• Maintenance of health benefits
• Job restoration
• Notice

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Equal Pay Act

• Prohibits gender-based wage discrimination
• Equal pay and benefits for same job or jobs of
  equal skill, effort and responsibility

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ADEA

• Prohibits discrimination on the basis of age in
• Hiring
• Discharge
• Compensation
• Conditions of employment

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IRCA

• Unfair to discriminate on the basis of national
  origin or citizenship status
• May use citizenship as a criteria when it is
  required by law

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FLSA

• Minimum wage and overtime to covered employees
• Exempt employees
• Less than 20 is non-exempt work
• Manager, administrator, professional
• Supervises two or more
• Exercises discretionary powers

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Compensatory time

• ONLY employees of a public agency can receive
  time off in lieu of overtime

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Checking In

• What are the three types of rights and some
  limits?
• Discuss reasonable searches and the limits of
  privacy expectations
• Discuss the FMLA, Title VII, 504, ADA, ADEA,
  IRCA, FLSA, Local Agency Law, and Tenure
  Statutes and how each acts specifically to
  protect your rights.

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You Know, It just all depends!