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Human Resources for Building Administrators. 31 st Annual Oregon School Law Conference. Presented by: Peggy Stock, Labor and Employment Consultant. Overview. Equitable treatment of employees Protected classes Workplace harassment Sexual Conduct Workplace investigations

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Human resources for building administrators

Human Resources for Building Administrators

31st Annual Oregon School Law Conference

Presented by:

Peggy Stock,

Labor and Employment Consultant


  • Equitable treatment of employees

  • Protected classes

  • Workplace harassment

  • Sexual Conduct

  • Workplace investigations

  • Discipline and Dismissal

  • OFLA/FMLA Compliance

Equitable treatment
Equitable Treatment

  • Communicate standards to employees

    • Policies, CBA, MOUs, directives

  • Treat employees consistently

    • Contrast “consistent” with “same”

    • Fair and consistent with positive treatment as well as negative treatment

  • Document when appropriate

Equitable treatment1
Equitable Treatment

  • Factors to Consider in Fair/Consistent Disciplinary Treatment

Protected classes
Protected Classes





  • Race/color

  • Religion

  • Sex (inc. pregnancy-related conditions)

  • Sexual Orientation

  • National origin

  • Disability (Physical/Mental)

  • Injured Workers

  • Marital status

  • Age/18 & older

  • Pregnancy

  • Family relationship

  • Veteran status

  • Expunged juvenile record

  • Being a smoker

  • Use of Worker’s Compensation

  • Retaliation for opposing unlawful employment practices or participating in employment proceedings

  • Use of family medical leave

  • Leave to donate bone marrow

  • Opposition to safety/health hazards

  • Genetic screening

  • Whistle-blowing

  • Military duty

  • Association with a protected class

  • Union activity

  • Garnishment

  • Use of other employment rights (wage & hour, unemployment, etc.)

  • Refusal to take polygraph, psychological stress, or blood/breathalyzer test to detect alcohol

Protected class discrimination
Protected Class Discrimination

  • Know who on your staff is a protected class and/or participates in protected activities

  • Employer should be able to provide a legitimate (non-discriminatory) basis for any adverse employment action taken against a member of a protected class or a participant in a protected activity

Workplace harassment
Workplace Harassment

  • Sexual harassment

  • Bullying

  • Other forms of harassment

Workplace harassment1
Workplace Harassment

  • Harassment undertaken because of sex

  • Hostile work environment

  • Quid pro quo

Workplace harassment2
Workplace Harassment

  • Harassment Pitfalls

    • Supervisor, co-worker, third party

    • The myth of consensual harassment

    • Complainant wants no action taken

    • The “equal opportunity harasser”

Workplace harassment3
Workplace Harassment

  • Bullying

    • Traditional

    • Cyber

Workplace harassment4
Workplace Harassment

  • Traditional Bullying

    • Repeated harmful acts and imbalance of power

    • Systematic campaign to weaken/undermine

Workplace harassment5
Workplace Harassment

  • Cyber bullying

    • Electronic form of traditional bullying

    • Impersonation

    • Stalking

    • Threatening

Workplace harassment6
Workplace Harassment

  • Other forms of unlawful harassment – based on protected classes

    • Race/color

    • Religion

    • National origin

    • Age

    • Disability (physical/mental)

  • Typically involves hostile work environment situation with elements similar to those of hostile environment sexual harassment

Workplace harassment7
Workplace Harassment

  • Affirmative Steps

    • Policies

    • Training

    • “Immediate and appropriate corrective action”

      • ALWAYS investigate

Sexual conduct
Sexual Conduct

  • Became effective July 1, 2010.

  • Aimed at expanding existing mandatory reporting obligations to prevent “sexual conduct” by school employees

  • Applies to all “education providers”

  • You must investigate it!

Sexual conduct1
Sexual Conduct

“Sexual conduct” means any verbal or physical

conduct by a school employee that:

  • Is sexual in nature;

  • Is directed toward a K-12 student;

  • Has the effect of unreasonably interfering with a student’s educational performance; and

  • Creates an intimidating, hostile or offensive educational environment.

Sexual conduct2
Sexual Conduct

  • Touching students frequently

  • Commenting on students’ bodies or appearance in a sexual manner

  • Exchanging romantic gifts or communications with a student

  • Showing pornography and obscene or suggestive photos to the student

Sexual conduct3
Sexual Conduct

  • Videotaping or photographing a student in revealing or suggestive poses

  • Discussing/writing about sexual topics unrelated to curriculum with students, making sexual jokes, gestures, pictures and innuendos or engaging in inappropriate banter with students (e.g. discussion of student’s dating behavior)

Sexual conduct4
Sexual Conduct

  • Sharing your own sexual exploits or marital difficulties

  • Intentionally invading the student's privacy (e.g. walking in on him/her in the bathroom intentionally)

  • Going to the student's home without parent supervision

  • Using e-mail, text-messaging, or instant messaging to discuss sexual topics with individual students

  • Dating students

Why the focus on sexual conduct
Why the Focus on “Sexual Conduct”

  • It’s another term for “sexual grooming” that involves finding a vulnerable student and engaging in increasingly inappropriate boundary invasions

Sexual conduct5
Sexual Conduct

  • Must provide annual training to employees

  • Prevention training to students

  • Know your District policies around hiring requirements

  • Any claim must be investigated

Workplace investigations
Workplace Investigations

  • When to conduct an investigation

  • Policies and procedures

  • Witness interviews

  • Weingarten and Garrity

  • Comprehensive report

Workplace investigations1
Workplace Investigations

  • When to conduct an investigation

    • Suspicion of wrongdoing

    • Conflicting stories

    • Always investigate any complaint or suspicion of sexual harassment

Workplace investigations2
Workplace Investigations

  • Preparing for an investigation

    • Review policies & procedures

    • Consult with an expert

    • Determine whether administrative leave is appropriate

Workplace investigations3
Workplace Investigations

  • Witness Interviews:

    • Focus on facts

    • Observe and note body language

    • Avoid conclusions and opinions

    • Prepare questions in advance

    • Do not promise confidentiality

    • Have neutral witness/note taker

    • Tape recordings

Workplace investigations4
Workplace Investigations

  • Weingarten Rights

    • If an employee reasonably believes that a meeting can lead to disciplinary action they have the right to request a representative to attend the meeting

    • Role of Representative:

      • Note taking

      • Clarifying questions

Workplace investigations5
Workplace Investigations

  • Garrity Doctrine

    • Public employees may be compelled to give statements under threat of discipline/discharge without violating the Fifth Amendment protection against compulsory self-incrimination, but such statements may not be used in subsequent criminal proceedings

Workplace investigations6
Workplace Investigations

  • Comprehensive report

    • Review of all evidence and documents

    • Draw conclusions

    • Is there sufficient information to make an informed decision?

    • Should a TSPC report be filed?

    • Is discipline called for?

Workplace investigations7
Workplace Investigations

  • Is discipline called for?

    • Substantial evidence

    • Violation of

      • Policy

      • Rule

      • Professional Standard

      • Agreement

      • Order/directive

Discipline dismissal
Discipline & Dismissal

  • Due Process

    • Elements

      • Notice of allegation/deficiency

      • Review of evidence

      • Opportunity to respond

      • Issue decision

    • Timing is crucial

    • When in doubt, over-process

Discipline dismissal1
Discipline & Dismissal

  • Just cause

    • Forewarning

    • Reasonable rule

    • Investigation prior to discipline

    • Investigation is fair and objective

    • Substantial evidence of work rule violation

    • Even-handed application of rules and corrective action

    • Proportionality

Ofla fmla

  • Revise board policies/administrative regulations

  • Track all qualified absences

  • Allow use of sick leave pay for any qualified absences

Ofla fmla1

  • Reinstate employees to proper position

  • Cannot discipline for absences


Peggy Stock,

[email protected]

Oregon School Boards Association

Legal, Labor and Employment Department