GASPA May 5 2011 Legal Issues Update Presented

GASPA May 5, 2011 Legal Issues Update Presented by: Phil Hartley Harben, Hartley & Hawkins, LLP Wachovia Center, Suite 750 340 Jesse Jewell Parkway Gainesville, Georgia 30501 Telephone: (770) 534 -7341; Facsimile: (770) 532 -0399 phartley@hhhlawyers. com 1 1

� 2011 -12 Work Calendar and Pay Scale

Salary Schedules: O. C. G. A. § 20 -2 -212(a) SBOE shall establish a schedule of minimum salaries for services rendered which shall be on a ten-month basis…. The minimum salary schedule shall provide a minimum salary base for each classification of professional personnel required to be certificated; shall provide for increment increases above the minimum salary base…based upon individual experience and length of satisfactory service…. The minimum salary base for certificated professional personnel with bachelor’s degrees and no experience, when annualized from a ten-month basis to a 12 -month basis, shall be comparable to the beginning salaries of the recent graduates of the University System of Georgia…. 3

Salary Schedules Cont’d: O. C. G. A. § 20 -2 -212(a) The General Assembly shall annually appropriate funds to implement a salary schedule for certificated professional personnel. For each state fiscal year, the state board shall adopt the salary schedule for which funding has been appropriated by the General Assembly. A LUA shall not pay to any full-time certificated professional employee a salary less than that prescribed by the schedule of minimum salaries…; nor shall a LUA pay to any part-time certificated professional employee less than a pro rata portion of the respective salary prescribed by the schedule of minimum salaries…. 4

School Year for Certified Staff: Old SBo. E Rule 160 -5 -1 -. 01 5

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New SBo. E Rule 160 -5 -1 -. 02 For Grades K– 12, the LBOE shall schedule the school year for students as a minimum of 180 school days or its equivalent. Beyond the school year for students, the LBOE shall adopt policies and procedures identifying the number of days to be utilized for professional learning for all employees.

State Salary Schedule: Georgia Annual/Monthly Salary for 10 Months (190 Days) Employment 9

SBo. E Emergency Authorization for the 2010 -2011 School Year 10

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State Salary Schedule: FY 2010 Amendment 1 (Reductions) Georgia Daily Salary Schedule 13

Pre K �What Rules Apply to Pre. K Teachers? �Statutes, Rules, Guidelines �What Options Exist for Existing Teachers? �Reduction in Force �Moving Teachers into K-12 �What Should You Do? �Consider a New Contract �Look Carefully at Salary Schedule �Treat the Program Separately �Check out TRS requirements

New Clearance Certificates: HB 285 �No more temporary 200 day contracts for new hires, so remove that language from contracts �Can employ for 20 days without a contract and without a clearance certificate �School District applies for certificate after running background check and after deciding to hire �Clearance certificate may be denied for certification issues that you wouldn’t know about? So ask!! �Clearance certificate applies to PSC standards as to criminal charges and no ethics violations

Issues to Be Aware of…. . �No 200 day probation �Working as a sub until clearance certificate issued �PSC standard and your standard may not be the same as to criminal record �Even if there is a clearance certificate, still need to check for past certification issues �Even if there is a clearance certificate, still need to run background check

A Couple of Other Issues from the General Assembly �HB 192 �Creates Education Finance Study Commission �Extends flexibility statutes, including May 15 deadline through 2015 �SB 184 – DID NOT PASS, YET! �“A LBOE shall not adopt or implement a policy that allows length or service to be the primary or sole determining factor when implementing a reduction in force. The local board shall consider as the primary factor the performance of the educator, one measure of which may be student academic performance. ”

Discrimination Claims and How to Avoid Them 18

Employment Discrimination Under Federal Law �All school district employees protected by Title VII, ADEA, ADA prohibiting discrimination based on race, color, national origin, sex, religion, disability or age; �Employees also have certain First and Fourteenth amendment rights while employed by a school district; �Many statutes have retaliation provisions. 19

What is retaliation? A retaliation claim is one based on the allegation that the employee has suffered an adverse employment consequence as a result of engaging in constitutionally or statutorily protected activity. 20

Retaliation claims include: Exercise of constitutionally protected rights such as the right to speak publicly on matters of public concern 21

Exercising personal rights under federal statutes such as • Title VII • Equal Pay Act • Americans with Disabilities Act & 504 • Age Discrimination in Employment Act • Family and Medical Leave Act • Fair Labor Standards Act • Title IX • Title VI • 42 U. S. C. § 1981

New Personal Rights for Nursing Mothers �Patient Protection & Affordable Care Act amended FLSA in March 2010 �Employers must provide for non-exempt employees, encouraged for all �“Reasonable” break time each time employee needs to express breast milk till child is 1 year old �Place, other than bathroom, shielded from view and free from intrusion of co-workers �DOL warns of discrimination or retaliation 23

Advocating on behalf of others • Title VII • Title IX Sex Discrimination • Section 504 24

Recent Federal Employment Discrimination Cases �Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (U. S. Supreme Court 2009): �Employee was a witness during a Title VII internal investigation by the employer �Court determined that she was protected by the retaliation provisions of Title VII even though she did not file a complaint herself 25

Recent Federal Employment Discrimination Cases �Thompson v. North American Stainless, LP (U. S. Supreme Court 2011): �Employee was the fiancée of another employee who had filed a sex discrimination complaint �Court determined that an employee who has a significant relationship with another employee who brought a complaint is protected by the antiretaliation provisions of Title VII 26

So…as an example, an ADA claim— The plaintiff can be a teacher or other staff member who: § has alleged discrimination for her disability; § has complained about the nature and quality of services to special education students or alleged discrimination against disabled students or co-workers in various school programs or activities; § has, as a parent, advocated for her child in an IEP meeting or due process hearing; § alleges mistreatment by a supervisor upon returning from FMLA leave or asserting her own rights under the ADA; § testified as a witness or was involved in the investigation; or § has a significant relationship with another employee who has brought a complaint. 27

Keys to the Defense of Claims of Discrimination �Follow standard procedures; �Keep good, accurate records; �Be brutally frank in documenting performance and employee conduct : avoid simply “encouraging” the employee to better performance by seeking out the positives to write down and downplaying failures; �Forthright, but fair. 28