Human Resources for Building Administrators

1. Human Resources for Building Administrators 31st Annual Oregon School Law Conference Presented by: Peggy Stock, Labor and Employment Consultant

2. Overview • Equitable treatment of employees • Protected classes • Workplace harassment • Sexual Conduct • Workplace investigations • Discipline and Dismissal • OFLA/FMLA Compliance

3. 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

4. Equitable Treatment • Factors to Consider in Fair/Consistent Disciplinary Treatment

5. Protected Classes • PROTECTED STATUS • PROTECTED ACTIVITY • 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

6. 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

7. Workplace Harassment • Sexual harassment • Bullying • Other forms of harassment

8. Workplace Harassment • Harassment undertaken because of sex • Hostile work environment • Quid pro quo

9. Workplace Harassment • Harassment Pitfalls • Supervisor, co-worker, third party • The myth of consensual harassment • Complainant wants no action taken • The “equal opportunity harasser”

10. Workplace Harassment • Bullying • Traditional • Cyber

11. Workplace Harassment • Traditional Bullying • Repeated harmful acts and imbalance of power • Systematic campaign to weaken/undermine

12. Workplace Harassment • Cyber bullying • Electronic form of traditional bullying • Impersonation • Stalking • Threatening

13. 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

14. Workplace Harassment • Affirmative Steps • Policies • Training • “Immediate and appropriate corrective action” • ALWAYS investigate

15. 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!

16. 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.

17. 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

18. 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)

19. 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

20. 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

21. Sexual Conduct • Must provide annual training to employees • Prevention training to students • Know your District policies around hiring requirements • Any claim must be investigated

22. Workplace Investigations • When to conduct an investigation • Policies and procedures • Witness interviews • Weingarten and Garrity • Comprehensive report

23. Workplace Investigations • When to conduct an investigation • Suspicion of wrongdoing • Conflicting stories • Always investigate any complaint or suspicion of sexual harassment

24. Workplace Investigations • Preparing for an investigation • Review policies & procedures • Consult with an expert • Determine whether administrative leave is appropriate

25. 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

26. 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

27. 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

28. 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?

29. Workplace Investigations • Is discipline called for? • Substantial evidence • Violation of • Policy • Rule • Professional Standard • Agreement • Order/directive

30. 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

31. 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

32. OFLA/FMLA • Revise board policies/administrative regulations • Track all qualified absences • Allow use of sick leave pay for any qualified absences

33. OFLA/FMLA • Reinstate employees to proper position • Cannot discipline for absences

34. Questions?? Peggy Stock, pstock@osba.org Oregon School Boards Association Legal, Labor and Employment Department 1-800-578-6722