Making Legally Defensible Decisions about Human Resources:

Do You Have the Right People in the Right Positions?

Peggy Burns, Esq.Education Compliance Group, Inc.

888-604-6141www.educationcompliancegroup.com

peggy@educationcompliancegroup.com Copyright © 2011, Education Compliance Group, Inc. All rights reserved.

Hiring Discipline Training Evaluating

Key Employment Processes

Choosing the right people when budgets are tight

Job descriptions should contemplate: Need for regular attendance Ability to perform in a variety of essential capacities Communication skills Calm under pressure

Prepare for likely needs Reflect need for versatility in hiring docs and handbooks Show that the need for employees to perform other duties is recurrent Keep records of each time and each situation in which this occurs

Potential legal issuesEmployment discrimination concernsFair Labor Standards ActMeeting students’ needs

The costs of hiring the wrong driver or attendant

Financial impact◦Training costs◦Testing costs◦Worst case scenario: litigation costs,

money judgments Safety risks Adverse community relations

Avoiding the risk of a wrong hire, and living too long “in denial”

Thorough, comprehensive background and employment check

Observe closely, act on reasonable suspicion Apply zero tolerance for significant performance issues Provision of comprehensive, ongoing professional

development training on student management and handling emergencies

“Create a culture in which staff places a high priority on safety by holding each other accountable.” Mark Hinson

Effective and timely evaluation processes

Discipline Investigate Make decisions on objective, articulable bases Be aware of timing of discipline Treat similar situations in a similar manner

Be able to show how one employee situation is different from another to defeat discrimination claim

Documentation is key When a situation is likely to endanger students –

Ignoring, or failing to act appropriately to discipline, can leave you vulnerable to a claim of deliberate indifference

Scenario

Liv Enlarge, a part-time driver, admitted she took more days off than permitted by contract.

Although issuing a verbal warning, her supervisor granted Liv additional leave time for a honeymoon. But approval was attached to conditions: Liv would work as scheduled for the rest of the year and follow district expectations regarding attendance from now on.

During the next school year, Liv was warned again when she exceeded her leave time. Nevertheless, she requested additional time (she had already purchased airline tickets!) Soon thereafter, her doctor recommended additional time off because of “acute situational anxiety.”

There’s more to tell. . .ultimately, though, Liv was terminated

She sued, alleging violation of the FMLA.

The decision

FMLA return-to-leave provisions applies only to employees on leave from work “for the intended purpose of the leave.”

Even an employer’s “honest suspicions” that an employee was not using medical leave for its intended purpose can defeat an FMLA claim if the honest belief is “reasonably based on particularized facts.” Did the employer act in good faith?

An employee’s refusal to allow access to medical information to enable fair evaluation of the purpose of the FMLA leave provides a sound basis for termination in light of her refusal to sign a “Last chance Agreement.”

And remember – FMLA doesn’t apply if an employee doesn’t qualify

But “just a little malice” is a problem

Mechanic Vic Tum endured stress over his concerns about the safety of

school buses, and took considerable leave. After continuing absences despite doctor’s certification to return to work,

his supervisor placed him on leave pending a psych examination. During his leave, all 8 district buses failed inspection due to numerous

wiring and electrical problems that looked like criminal mischief. The police investigation was inconclusive. Vic was released by his psychiatrist to return to work, but was often

absent, and exhibited performance problems. The district hired a private investigator to follow Vic, and the investigator

determined his use of FLMA leave didn’t comport with his request for

leave. He was terminated.

Vic’s evidence:

◦Supervisor’s actions relating to failed bus inspections

◦The fact that supervisors made Vic see a psychiatrist

◦The reprimands for safety issues

◦“Illegitimately terminating him for taking a day off to attend his special needs son.”

Even “some” evidence allows an appeal to proceed

Training General. . . In accordance with the essential duties

of the position Specific. . .In accordance with the needs of the

students with whom the individual will work Think outside the box: ◦ A male custodian with upper body strength who otherwise meets the

basic requirements to be an aide can be trained to work with a particular male student with special behavioral needs

◦ Look within your own district – but outside your department – for trainers

◦ Recognize creative, high-impact, training opportunities

Evaluations Use objective terms & measurable criteria What skill sets and specific capabilities are tied to

each function? Have formal assessments or ratings Be sure to comply with relevant policy or collective

bargaining agreements regarding timing, frequency etc.

Provide opportunity to improve, where appropriate