IEA-NEA Guide to legal rights and responsibilities of education employees
IEA-NEA hopes this Legal Guide will help you deal effectively with your employer. In cooperation with your AR, you should contact your UniServ Director regarding unresolved legal questions or concerns.
The Illinois Educational Labor Relations Board (IELRB) has held, however, that the right to representation does not apply to a post-observation evaluation conference when a teacher is under remediation. The reasoning of the Board was that there is no reasonable fear that the conference would lead to discipline. The Board also made it clear that if the parties included a provision for union representation at post-observation evaluation conferences in the collective bargaining agreement, such representation would be required.
An educational employee has a number of different legal protections and rights. These rights come from a variety of sources. In order to determine whether any rights have been violated, each of the following sources should be explored. The rights listed below are by no means exhaustive, but are meant to highlight some of the more important protections.
The United States Constitution and the Constitution of the State of Illinois provide a number of protections to all citizens. Two of the more important protections for educational employees are the rights of free speech and due process. Other rights include freedom of religion, freedom from search and seizure, freedom from self-incrimination, and certain privacy rights.
A person does not give up his or her right to free speech as a result of becoming a public employee. Free speech encompasses a number of different areas, each with its own specific rules. These include academic freedom, artistic expression, the rights of association (such as with a union), and political speech. One thing that is clear is that educational employees may not be dismissed, transferred, reprimanded, or have their employment rights infringed in any way as a result of exercising constitutionally protected rights of free speech. This applies to probationary as well as non-probationary employees.
The next step in analysis is whether the employee’s interest in commenting on matters of public concern outweighs the employer’s interest in promoting efficiency and integrity in discharging official duties. There are a number of factors, which will be considered in weighing the respective rights. These include:
- The need to maintain discipline or harmony among co-workers;
- The need for confidentiality;
- The need to curtail conduct which impedes the employee’s proper and competent performance of his/her daily duties;
- The need to encourage a close and personal relationship between the employee and superiors where that relationship calls for loyalty and confidence.
If the employee is successful in meeting his or her burdens of proof, appropriate relief can include injunctive relief, reinstatement to a job or position, damages as proven, and attorney fees.
If a property or liberty right is involved, the minimum process required appears to be a notice of the charges, a discussion of the proof against the employee, and some opportunity to respond. Of course, more rights are often given by statute or contract, and these possibilities are discussed later.
The second source of educational employee rights is state and federal statutes. Once again, there are many statutes, which may affect such employees. The most important of these are tenure statutes, labor laws, and various anti-discrimination statutes. Others include various provisions of the School Code, Unemployment Compensation Statutes, Workers Compensation laws, and laws establishing employee rights to continue or convert group health insurance.
The Act prohibits educational employers from doing a number of things which are considered unfair labor practices. Some of the more important of these unfair labor practices are: interfering, restraining, or coercing employees from exercising their rights under the Act; discriminating against employees for the purpose of discouraging membership in an employee organization or participation in IELRB proceedings; refusing to bargain in good faith, including making unilateral changes without adequate prior notice and bargaining with the exclusive representative; and refusing to comply with a binding arbitration award. Charges are filed with the Labor Board, which investigates the charges and, where appropriate, issues complaints. Hearings may then be held and a decision issued by the hearing officer of the Board. The Board has the authority to issue appropriate orders to prohibit the unfair labor practice and order remedial relief where appropriate.
The Community College Tenure is governed by Section 3B-2 of the Public Community College Act. It covers “faculty members” who are defined to include full-time employees of the community college who are engaged in teaching or academic support services. Supervisors, administrators, and clerical personnel are excluded. A faculty member becomes tenured after being employed at the community college for a period of three consecutive school years. The board may extend the probation for an additional year by giving the faculty member notice at least 60 days before the end of the school term, which notice must include the corrective actions that need to be taken. The probationary period may be shortened by local board rule or collective bargaining agreement.
As with any other case, the person who believes he or she has suffered as a result of illegal discrimination must prove the charges with evidence.
If a provision of a collective bargaining agreement is violated, the employee and/or union may file a grievance under the grievance procedures of the contract. Failure to file within the contractually stated period may result in a loss of rights. The final stage of the grievance procedure is binding arbitration. Failure by an employer to comply with an arbitration award can be an unfair labor practice.
An employee handbook may also be a source of rights. In order to create enforceable rights, the language of the handbook must contain a promise clear enough that an employee would reasonably believe that an offer had been made. Second, the statement must be disseminated so the employee is aware of its contents and believes it to be an offer. This means that the handbook must actually be distributed. Finally, the employee must accept the offer by beginning or continuing to work after he or she becomes aware of the handbook provision. If these conditions are met, the handbook becomes a contract binding on the employer.
Teachers who are on tenure must be evaluated at least once every other year. All evaluations are to be made by an administrator who has received appropriates training by the State Board.
Teachers on probation must be evaluated at least once every year. The evaluation plan under which these teachers are evaluated need not include the same components as the evaluation plan tenured teachers.
Barring any provisions in a collective bargaining agreement or employee handbook, probationary teachers do not have any “bumping” or “recall” rights in the event of a reduction in force.
A tenured teacher who is dismissed for cause has a number of protections by statute. Causes for dismissal are classified as either remediable or irremediable. If a cause is remediable, the teacher must be given notice in writing stating specific cause which, if not removed, may result in dismissal. The teacher must be given an opportunity to correct the deficiency. If a charge is considered to be irremediable, no prior warning need be given. A charge is deemed to be irremediable if it causes damage to the students, faculty, or school which could not be corrected if prior notice and an opportunity to correct were given.
A hearing is then scheduled, at which time the board has the burden of proving by a preponderance of the evidence that cause exists for dismissal (and, if appropriate, that the cause is irremediable). Each side has the right to call witnesses and present documentary evidence. Both sides have a right to be represented by counsel and to cross-examine each other’s witnesses. All testimony is taken under oath and transcribed.
A tenured teacher who is honorably dismissed also has recall rights. If a position that a teacher is legally qualified to teach becomes vacant within one calendar year from the beginning of the following school term, he or she is entitled to be recalled in order of seniority. These recall rights extend to two years if the number of honorable dismissals based on economic necessity that occurred at the time the teacher was honorably dismissed for economic reasons exceeds 15% of the number of full-time equivalent positions filled by teachers and other non-supervisory certified staff during the preceding school year.
Non-tenured faculty members have preferential recall rights over new faculty members if they are competent to render the services required by the position. The recall rights exist for a period of 24 calendar months from the beginning of the school term for which the faculty member was dismissed.
The honorably dismissed tenured faculty member also has recall rights for 24 months from the beginning of the school term for which he or she was dismissed. Recall is in the order of seniority with the most senior person being recalled first. The recalled faculty member must be competent to render the services required by the position.
Non-faculty employees also have certain protections when there is a reduction in force. These protections when there is a reduction in force. These protections only apply to those employees who have completed the probationary period. The least-senior employee must be laid off first. Those who are laid off are placed on a re-employment register and are recalled in the order of seniority.
If any vacancies occur within one calendar year from the beginning of the following school term, the position becoming available must be offered to the most senior person who was honorably dismissed within that category of position.
School districts and community colleges are required to give full-time teachers and other employees who work 600 or more hours in a school year at least 10 days of sick leave each year. Sick leave is typically awarded at the beginning of each school term. It may be used for personal illness or serious illness or death in the immediate family. Unused sick leave may be accumulated to at least 180 days. The amount of sick leave may be increased by the collective bargaining agreement or by board policy. A teacher may not be dismissed or have his or her tenure status affected by tempory physical or mental incapacity.
A school board may, but is not required to pay employees for unused sick leave when they leave employment. Employees covered by the Illinois Teachers’ retirement System, the State Universities Retirement System, and the Illinois Municipal Retirement Fund may supply unused sick leave to increase retirement benefits. Persons under the Illinois Municipal Retirement System may apply up to 170 days of unused and uncompensated sick leave granted by current and former educational employers in order to acquire one year’s service credit. Those covered by the State Universities retirement System can receive up to one year of service credit if they have 180 to 240 days of unused sick leave. Those covered by the Illinois Municipal Fund can receive up to one year’s service credit if they have 240 days of unused sick leave.
In general, the FMLA entitles employees to up to 12 weeks of unpaid leave per year for a spouse or an immediate family member with a serious health condition, or when unable to work because of a serious health condition. Employers covered by the law are required to maintain any pre-existing health coverage during the leave period and, once the leave period is concluded, to reinstate the employee to the same or equivalent job. All school districts are covered by the law, although not all educational employees are eligible if he or she has worked for the employer for at least 1250 hours during the preceding 12-month period and the employer has at least 50 employees. Teachers are presumed to have met the 1250-hour requirement.
A tenured teacher who enters military service is protected against loss of tenure status. Similarly, a teacher who is elected to the General Assembly must be given a leave of absence if one is requested, and leaves must be granted for service to a state or national teacher organization that represents teachers in collective bargaining negotiations. Many collective bargaining agreements provide for a variety of leaves including maternity leaves, extended illness leaves, bereavement leaves, and educational leaves. These provisions need to be carefully reviewed where applicable.
A tenured teacher may resign his or her position either by obtaining the concurrence of the board or by giving a 30-day written notice. If the teacher intends to take another teaching position, he or she may resign during the school term only with the permission of the board. If a teacher fails to comply with these notice requirements or in the alternative, fails to obtain the permission of the board, he or she may be found guilty of unprofessional conduct and subject to suspension of his or her teaching certificate for up to one year.
If an employee is denied his or her right under or an employer otherwise violates the Act, the employee can file a complaint with the Illinois Department of Labor or commence an action in court if the Department fails to act. Furthermore, many collective bargaining agreements are board policies do allow an employee access to his or her files, including the right to review, to make copies, and to place in the file written rebuttals to misleading or false information. If your collective bargaining agreement does not include such rights, this may be an item to be considered in future bargaining.
The evaluation law covering primary and secondary teachers also provides that a copy of all evaluations must be provided to the teacher and must be kept on file. Copies of these evaluations should be kept by the teachers in case the need ever arises for their use.
A teaching certificate may be suspended for a period of up to one year or revoked upon evidence of immorality, a condition of health detrimental to the welfare of pupils, incompetence, unprofessional conduct, the neglect of any professional duty, the willful failure to report an instance of child abuse or neglect, or evidence that the holder of a certificate has been named as a perpetrator in an indicated report of child abuse or neglect. Suspension proceedings may be initiated by either the regional superintendent or the state superintendent of education, while revocation proceedings may be initiated only by the state superintendent.
If a certificate holder is convicted of certain sex or narcotics offenses, the certificate is automatically suspended. If the conviction is reversed on appeal and the person is acquitted following a new trial or charges are dismissed, the suspension is lifted. If the conviction becomes final, the certificate is automatically revoked. A final decision to revoke or suspend a certificate may be appealed to the courts. However, no new evidence is introduced and the administrative decision will only be reversed if the factual findings are against the manifest weight of the evidence or in the case of procedural errors.
Educational employees often express concern whether they can be held personally liable for injuries occurring to students or other employees in the course of their work. There are a number of ways in which employees are protected from such liability.
School districts and community colleges are required to indemnify (hold harmless) teachers and other employees against liability arising out of civil rights claims, death and bodily injury, and property damage claims are sought for negligent or wrongful acts occurring during the scope of employment or under the direction of the board. The protection includes the cost of defending such actions as well as any damages which might actually be awarded. This protection would include extracurricular activities as well as anything occurring during normal school hours. Although school districts may purchase insurance to protect all their employees against such liabilities, a new law requires the State Board of Education to provide such insurance coverage to any certified employee who requests it, although to our knowledge, no funds have been appropriated to provide such insurance for the 2002-03 school year. Non-certificated employees are not eligible for this State Board provided coverage, although their districts may still purchase insurance to protect them.
In addition to this statutory protection, IEA-NEA members are covered by Educators’ Employment Liability (EEL) insurance, which provides additional coverage of one million dollars and monitoring of the legal defense provided by the school district. Although a few activities are excluded, all IEA-NEA members have professional and personal liability protection from the Horace Mann Insurance Companies.
In addition, health-related fields such as nursing may purchase additional liability insurance at a low cost through NEA.
This high standard of proof makes it difficult to recover damages except in the most egregious of circumstances. As stated earlier, the school board will be required to pay any damages assessed unless they include punitive damages. Even here, your IEA-NEA Educators’ Employment Liability insurance provides protection for such damages.
Any final action taken in open session on a matter that was discussed in closed session must be preceded by a public recital of the nature of the matter discussed in closed session. A general description of a confidential matter would be sufficient as long as it informs the public of the business being conducted. In addition, a public body must review semi-annually the minutes of all closed sessions to determine whether confidentiality still exists. After making this determination, the body is required to report in open session and make available for public inspection those minutes that no longer require confidential treatment.
If a board fails to comply with this Act, any person may file suit within 60 days of the alleged violation to force compliance. A court may issue appropriate relief if a violation is found, including requiring a meeting be open, enjoining future violations, ordering that executive session minutes be made public, or declaring any final action taken at a closed meeting to be null and void. Under some circumstances, attorney fees can also be awarded to the prevailing party.
The pensions provide for a variety of benefits including retirement and disability pensions.
The limited Municipal retirement Fund (“IMRF’) has an early retirement program (“ERI’). Under it, a school district must first decide to adopt the program; a district is not required to do so. Once the program is adopted, an eligible employee has 60 days from the effective date of the program to notify IMRF of his/her intent to retire under it. An employee’s retirement date must occur within one year of the effective date of the program. The program allows employees to purchase between one month and five years of age and service credit for the purpose of determining retirement benefits. For every year of service credit purchased, an employee will, in most cases, pay 4.5 percent of his/her highest 12 consecutive months of salary. This payment is first taken from any lump sum payments for vacation, sick leave, and/or personal leave for which the employee is eligible. If this does not cover the amount necessary to purchase the service credit, the remaining amount can be paid in a single sum or deducted from the employee’s pension in 24 equal monthly installments. School districts also have costs associated with an employee retiring under ERI. These costs must be paid for over a period of no less than five years and no more than ten years .A district may not adopt a second ERI program until it has paid off these costs. To be eligible for the program, an employee must be at least age 50 and have at least 20 years of service credit by the date of his/her retirement.
Persons who are members of the Illinois Teachers’ retirement System are eligible for a retirement annuity if they have at least 20 years of creditable service and are age 55. If the member has between 10 and 20 years service, he or she is entitled to a pension at age 60; with between five and 10 years service, the member must be age 62. It should be remembered that in most cases those persons who retire prior to at least age 60 will be subject to reductions in the amount of the pension unless they exercise early retirement rights provided by the pension system.
Following the expiration of temporary disability benefits, the member will be eligible for a permanent disability pension. The amount of this pension is in most cases lower than temporary disability benefits.
Each of the systems provides that members who are convicted of any felony relating to or arising out of or in connection with his or her services as an employee forfeits benefits to which they may be entitled.
When a school employee makes a report to DCFS, he or she, at the employee’s discretion, may also inform the building principal or the school superintendent that a report has been made. At the community college or university level, such report may be made to the direct supervisor or department chairperson. This person may not interfere with the filing of a DCFS report. If the report to DCFS is made by telephone, a written report must also be filed as a follow-up. Willful failure to file a report where required may be a misdemeanor and can result in the suspension or revocation of a person’s teaching certificate. A person acting in good faith in making a report or participating in an investigation has immunity from civil and criminal liability.
Once the investigation is completed, the Department will determine that the report is either “indicated” or “unfounded.” If the Department determines that the report is “indicated,” it is placed on the DCFS Central Registry where it will remain for a minimum of five years. School superintendents have access to information contained on the Central Registry. A superintendent is required to inform the State Board of Education, the school board, and the chief administrator in the school where the alleged perpetrator is employed, that the person has been named as a perpetrator in an indicated report.
Being named as a perpetrator in an indicated report may be grounds for suspension or revocation of a teaching certificate.