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GASPA May 5, 2011. Legal Issues Update Presented by : Phil Hartley Harben, Hartley & Hawkins, LLP Wachovia Center, Suite 750 340 Jesse Jewell Parkway Gainesville, Georgia 30501 Telephone: (770) 534-7341; Facsimile: (770) 532-0399 1.

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gaspa may 5 2011

GASPAMay 5, 2011

Legal Issues Update

Presented by:

Phil Hartley

Harben, Hartley & Hawkins, LLP

Wachovia Center, Suite 750

340 Jesse Jewell Parkway

Gainesville, Georgia 30501

Telephone: (770) 534-7341; Facsimile: (770) 532-0399


salary schedules o c g a 20 2 212 a
Salary Schedules: O.C.G.A. § 20-2-212(a)

SBOE shall establish a schedule of minimum salaries for services rendered which shall be on a ten-month basis…. The minimum salary schedule shall provide a minimum salary base for each classification of professional personnel required to be certificated; shall provide for increment increases above the minimum salary base…based upon individual experience and length of satisfactory service…. The minimum salary base for certificated professional personnel with bachelor’s degrees and no experience, when annualized from a ten-month basis to a 12-month basis, shall be comparable to the beginning salaries of the recent graduates of the University System of Georgia….

salary schedules cont d o c g a 20 2 212 a
Salary Schedules Cont’d: O.C.G.A. § 20-2-212(a)

The General Assembly shall annually appropriate funds to implement a salary schedule for certificated professional personnel. For each state fiscal year, the state board shall adopt the salary schedule for which funding has been appropriated by the General Assembly. A LUA shall not pay to any full-time certificated professional employee a salary less than that prescribed by the schedule of minimum salaries…; nor shall a LUA pay to any part-time certificated professional employee less than a pro rata portion of the respective salary prescribed by the schedule of minimum salaries….

new sboe rule 160 5 1 02
New SBoE Rule160-5-1-.02

For Grades K–12, the LBOE shall schedule the school year for students as a minimum of 180 school days or its equivalent.

Beyond the school year for students, the LBOE shall adopt policies and

procedures identifying the number of days to be utilized for professional learning for all employees.

pre k
What Rules Apply to PreK Teachers?

Statutes, Rules, Guidelines

What Options Exist for Existing Teachers?

Reduction in Force

Moving Teachers into K-12

What Should You Do?

Consider a New Contract

Look Carefully at Salary Schedule

Treat the Program Separately

Check out TRS requirements

Pre K
new clearance certificates hb 285
No more temporary 200 day contracts for new hires, so remove that language from contracts

Can employ for 20 days without a contract and without a clearance certificate

School District applies for certificate after running background check and after deciding to hire

Clearance certificate may be denied for certification issues that you wouldn’t know about? So ask!!

Clearance certificate applies to PSC standards as to criminal charges and no ethics violations

New Clearance Certificates: HB 285
issues to be aware of
No 200 day probation

Working as a sub until clearance certificate issued

PSC standard and your standard may not be the same as to criminal record

Even if there is a clearance certificate, still need to check for past certification issues

Even if there is a clearance certificate, still need to run background check

Issues to Be Aware of…..
a couple of other issues from the general assembly
A Couple of Other Issues from the General Assembly
  • HB 192
    • Creates Education Finance Study Commission
    • Extends flexibility statutes, including May 15 deadline through 2015
  • SB 184 – DID NOT PASS, YET!
    • “A LBOE shall not adopt or implement a policy that allows length or service to be the primary or sole determining factor when implementing a reduction in force. The local board shall consider as the primary factor the performance of the educator, one measure of which may be student academic performance.”
employment discrimination under federal law
Employment Discrimination Under Federal Law
  • All school district employees protected by Title VII, ADEA, ADA prohibiting discrimination based on race, color, national origin, sex, religion, disability or age;
  • Employees also have certain First and Fourteenth amendment rights while employed by a school district;
  • Many statutes have retaliation provisions.
what is retaliation
What is retaliation?

A retaliation claim is one based on the allegation that the employee has suffered an adverse employment consequence as a result of engaging in constitutionally or statutorily protected activity.

retaliation claims include
Retaliation claims include:

Exercise of constitutionally protected rights such as the right to speak publicly on matters of public concern


Exercising personal rights under federal statutes such as

Title VII

Equal Pay Act

Americans with Disabilities Act & 504

Age Discrimination in Employment Act

Family and Medical Leave Act

Fair Labor Standards Act

Title IX

Title VI

42 U.S.C. §1981

new personal rights for nursing mothers
New Personal Rights for Nursing Mothers
  • Patient Protection & Affordable Care Act amended FLSA in March 2010
  • Employers must provide for non-exempt employees, encouraged for all
  • “Reasonable” break time each time employee needs to express breast milk till child is 1 year old
  • Place, other than bathroom, shielded from view and free from intrusion of co-workers
  • DOL warns of discrimination or retaliation
advocating on behalf of others

Advocating on behalf of others

Title VII

Title IX Sex Discrimination

Section 504

recent federal employment discrimination cases
Recent Federal Employment Discrimination Cases
  • Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (U.S. Supreme Court 2009):
  • Employee was a witness during a Title VII internal investigation by the employer
  • Court determined that she was protected by the retaliation provisions of Title VII even though she did not file a complaint herself
recent federal employment discrimination cases1
Recent Federal Employment Discrimination Cases
  • Thompson v. North American Stainless, LP(U.S. Supreme Court 2011):
  • Employee was the fiancée of another employee who had filed a sex discrimination complaint
  • Court determined that an employee who has a significant relationship with another employee who brought a complaint is protected by the anti-retaliation provisions of Title VII
so as an example an ada claim
So…as an example, an ADA claim—

The plaintiff can be a teacher or other staff member who:

has alleged discrimination for her disability;

has complained about the nature and quality of services to special education students or alleged discrimination against disabled students or co-workers in various school programs or activities;

has, as a parent, advocated for her child in an IEP meeting or due process hearing;

alleges mistreatment by a supervisor upon returning from FMLA leave or asserting her own rights under the ADA;

testified as a witness or was involved in the investigation; or

has a significant relationship with another employee who has brought a complaint.

keys to the defense of claims of discrimination
Keys to the Defense of Claims of Discrimination
  • Follow standard procedures;
  • Keep good, accurate records;
  • Be brutally frank in documenting performance and employee conduct : avoid simply “encouraging” the employee to better performance by seeking out the positives to write down and downplaying failures;
  • Forthright, but fair.