MoASBO Support Personnel Conference

1. MoASBOSupport Personnel Conference by Duane Martin November 19, 2013 Guin Martin & Mundorf, LLC 2401 Bernadette Drive, Suite 117 Columbia, Missouri 65203 (573) 777-9645 (573) 777-9648 (fax) dmartin@gmmschoollaw.com www.gmmschoollaw.com

2. Personnel Law / Employee Handbooks Guin Martin Mundorf, LLC

3. Personnel Law • Frequent personnel issues • Personnel records • Confidentiality Guin Martin Mundorf, LLC

4. Personnel Records Requirements • What must be segregated? • What must be retained? • For how long? • When can the record be disposed of? How? • What must be disclosed? • To employees? • To third parties? • Sunshine Law requests • Parents • Board members • In litigation Guin Martin Mundorf, LLC

5. Segregation of Personnel Records • Required • Files containing immigration records • Files containing medical information regarding an employee • Sensitive EEO information if collected by District. • Recommended • Separate by type of access allowed. • Example • Supervisors • Payroll Guin Martin Mundorf, LLC

6. Retention of Personnel Records • Must be retained in accordance with SOS records retention schedule • General • Public School District • Other state and federal requirements may exist • Example: MCHR regulation requirements Guin Martin Mundorf, LLC

7. Record • A "record" is defined as any "document, book, paper, photograph, map, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business" (109.210(5) RSMo). • This definition includes those records created, used and maintained in electronic form. Guin Martin Mundorf, LLC

8. “Non-Record” • Examples of non-records include the following materials: • Identical copies of documents maintained in the same file. • Extra copies of printed or processed materials (official copies of which are retained by the office of record). • Materials documenting employee fringe activities (blood donors, charitable funds, social and professional meetings, etc.) • Work papers and drafts of reports or correspondence. Transcribed stenographic materials. • Blank forms. • Materials received from other activities that require no action (official copies of which are retained by the office of record). • Survey forms Guin Martin Mundorf, LLC

9. “Non-Record” • Non-records do not require retention scheduling or destruction authorization or reporting. • To control excessive accumulation, it is necessary to keep only current, useful materials and to destroy non-records immediately after needs have been satisfied. • Avoid filing non-record material with records. Guin Martin Mundorf, LLC

10. Application of Schedule • The schedule is subject to the following exceptions and limitations: • Local government offices may retain any of their records beyond the retention periods set by the schedule, as they deem necessary. The schedule establishes only a minimum period of retention. • The schedule does not relieve local governments of retention requirements mandated by other state and federal statutes and regulations. • The schedule does not authorize destruction of records that could be deemed relevant to current or pending litigation. Guin Martin Mundorf, LLC

11. Basic Personnel Records Guin Martin Mundorf, LLC

12. MCHR Regulation Requirements • Under State regulations, “Any personnel or employment record made or kept by any employer “including, but not necessarily limited to, • application forms submitted by applicants and • other records having to do with hiring, promotion, demotion, transfer, layoff or termination, rates of pay or other terms of compensation and • selection for training or apprenticeship shall be preserved by the employer for a period of one (1) year from the date of the making of the record or the personnel action involved, whichever occurs later. Guin Martin Mundorf, LLC

13. Destruction of Personnel Records • The records classification and retention periods constitute legal authority for retention and disposal of official records. • No records can be destroyed until they meet the minimum retention period listed. • In cases where there is no schedule for a particular record series, the Local Records Board must grant permission for the destruction. • The disposition of records should be recorded in a document that has permanent record status. • The record should include the description and quantity of each record series disposed of, manner of destruction, inclusive dates covered and the date on which destruction was accomplished. • The retention schedule does not prescribe the method of destruction (shredding, burning, landfills, etc.). Guin Martin Mundorf, LLC

14. Disclosure of Personnel Records • Generally considered confidential and “closed” records • Access should only be granted to authorized individuals with a need to know • Technically, the Board could decide to open personnel records • Employees have a right of privacy in their employment records Guin Martin Mundorf, LLC

15. Inspection by Employees • No legal requirement to provide access • Board policies usually provide for access • “Upon request to and in the presence of the appropriate administrative official” • Usually limited to inspection only • The “personnel file” with certain exceptions • Ratings • reports and • records obtained prior to the employment of the individual, including confidential placement papers. • Most board policies do not provide right to copy • Do former employees have the same rights? Guin Martin Mundorf, LLC

16. Confidentiality • Personnel • Other confidential information: • Medical • Closed Session of the School Board Guin Martin Mundorf, LLC

17. Medical • Personnel medical records. • Medical information related to FMLA and ADA accommodations requests. Guin Martin Mundorf, LLC

18. Closed Session of the Board • Closed based on the content of the discussion, e.g., personnel records. • Select closed records may become open after a particular event or timeline. Guin Martin Mundorf, LLC

19. Employee Handbooks Guin Martin Mundorf, LLC

20. Purpose of Employee Handbooks • Communicate: • Policies • Procedures • Expectations • Benefits/payroll • Set tone for work environment • Desk reference regarding employment issues Guin Martin Mundorf, LLC

21. Adoption/Approval • Administration - Superintendent • Board approval? • Can be helpful if you want to take adverse employment action based on failure to follow rules in handbook. • In the event of conflict with Board Policy, employee may be able to argue handbook supersedes Board policy. • Not legally required. Guin Martin Mundorf, LLC

22. MSBA Policy CHCA Regarding Handbooks • Administration is responsible for creating, revising, maintaining and disseminating such handbooks in accordance with Board policies and administrative procedures. • Superintendent responsible for staff handbooks. • Principals are responsible for parent and student handbooks. • Must not conflict with language or intent of policies, regulations or procedures. • All handbooks must be reviewed annually and revised if necessary. Guin Martin Mundorf, LLC

23. MCE 0510 Regarding Handbooks • The Superintendent shall notify all employees and students of their need to abide by Board policies and regulations. • Administrators shall prepare staff, student and parent handbooks that interpret Board policies and state rules and regulations that affect each population set. • The handbooks shall be revised annually and distributed within the first month of the school term. • During periods of time in which the District maintains a District web site, the Board's policies and regulations along with student handbooks will be posted on the web site. Guin Martin Mundorf, LLC

24. Publication/Distribution • Hard copy to each employee? • Substitutes? • Independent contractors? • Volunteers? • Electronic copies on each desktop? • Employees without computers? • On website? • Intranet versus Internet. Guin Martin Mundorf, LLC

25. Internet Websites, Required Postings. RSMo 162.208 • If any public school district hosts a district-sponsored Internet website, that district shall post the following on such site: • (1) A current version of that district's policy manual and all related documents; and • (2) A current version of that district's handbook, or, if the district has more than one handbook, a current version of all of that district's handbooks. Guin Martin Mundorf, LLC

26. Identify Scope of Handbook • Limited to specific category of employees • Teachers • Drivers • Coaches • If applicable to multiple categories of employees, clearly identify which sections are applicable to which employees. • Can be perceived as granting rights to those employees not otherwise entitled to them. • If categories excepted out, identify them. • Example: Substitute teachers. • Volunteers • Independent Contractors Guin Martin Mundorf, LLC

27. Non-Discrimination and Anti-Harassment • Notice of non-discrimination • Reporting procedures including reporting points of contact • MSBA • AC – Prohibition of Illegal Discrimination and Harassment • MCE • 4110 – Equal Employment Opportunity • 1300 – Harassment • 1310 – Gender Discrimination • 2130—Discrimination/Harassment—Students (can apply to employees who have allegations against them or are reporting discrimination against/among students) • 4810 – Sexual Harassment Guin Martin Mundorf, LLC

28. Sample Acknowledgement I acknowledge I have received and reviewed a copy of the Employee Handbook, and that I have been made aware there is also an electronic version of the handbook available on the District’s website. I agree that if there is any policy or provision of the Handbook that I do not understand, I will seek clarification from my principal or direct supervisor. Guin Martin Mundorf, LLC

29. Sample Acknowledgement (cont.) I acknowledge that this Handbook is not a contract, either express or implied. I understand the District is an “at-will” employer, and, as such, employment is not for a fixed term or definite period and may be terminated at the will of either party, with or without cause, at any time, and without prior notice, unless otherwise agreed to by the Board and me in a writing signed by both the Board President and me. Guin Martin Mundorf, LLC

30. Sample Acknowledgement (cont.) I understand that the policies, procedures and benefits described in this Employee Handbook are periodically reviewed by the administration and the Board, and may be amended, modified, or deleted unilaterally by the Board at any time. I further acknowledge that the provisions in this Handbook are for informational purposes only and to the extent they differ from Board of Education policy, rules, regulations, or plan documents, the Board of Education policy, rules, regulations or plan documents are controlling. Guin Martin Mundorf, LLC

31. Avoiding Contract and Due Process Arguments • Include a good contract disclaimer. • Do not include language providing probationary period. • Avoid language in progressive discipline policy that states employee will receive an opportunity to improve performance. • Do not include language that explains fairness or special consideration will be given to employees because of longevity or seniority. • Do not include language indicating discharge only for cause, good cause or just cause. Guin Martin Mundorf, LLC

32. Double-Check for Conflicts with CBAs • If your district has a collective bargaining agreement (CBA) with any employee groups, ensure that your handbook provisions do not conflict with CBA. • May create need to have separate employee handbooks for separate categories of employees. Guin Martin Mundorf, LLC

33. Leave Policies • Must include FMLA leave policy. • MSBA • GCBDA – Professional Staff Short-Term Leaves and Absences • GCBDB – Professional Staff Long-Term Leaves and Absences • MCE • 4320 – Personnel Leave • 4321 – Family and Medical Leave Guin Martin Mundorf, LLC

34. Employee Benefits • No need to include all the details. • Short summary with reference to plan description or more complete reference. • Make it clear that the plan document controls • Provides break from rest of handbook rules by highlighting some perks. • MSBA • GCBC – Professional staff • GDBC – Support Staff • MCE • 4510 – Benefits • 4530 – Workers’ Compensation Benefits • 4540 – Group Insurance Benefits Guin Martin Mundorf, LLC

35. Employee Disciplinary Policies • Carefully consider whether you want to include them. • Not necessary and not necessarily helpful to employer. • Do not provide procedures that are inconsistent with Board policies. • Do not provide for progressive discipline. • Do not provide a grievance process to dispute discipline – can lead to due process claims. Guin Martin Mundorf, LLC

36. Staff Complaints and Grievances • Include your Board policy regarding staff complaints and grievances. • MSBA • GBM – Staff Complaints and Grievances • MCE • 4850 – Staff Dispute Resolution • Also, remember that if you include something in the employee handbook, it may become the sources of a “grievance” under board policy. Guin Martin Mundorf, LLC

37. Stay Up to Date • Should be reviewed annually. • Send out notices of mid-year changes. • Require acknowledgement of receipt. • Acknowledgement by mid-year hires. Guin Martin Mundorf, LLC

38. MoASBOSupport Personnel Conference by Duane Martin November 19, 2013 Guin Martin & Mundorf, LLC 2401 Bernadette Drive, Suite 117 Columbia, Missouri 65203 (573) 777-9645 (573) 777-9648 (fax) dmartin@gmmschoollaw.com www.gmmschoollaw.com