EMPLOYMENT LAWS TO CONSIDER WHEN DISMISSING OR NON-RENEWING TEACHERS

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1 BRADLEY F. KIDDER EDUCATIONAL LAW CONFERENCE October 2, 2013 EMPLOYMENT LAWS TO CONSIDER WHEN DISMISSING OR NON-RENEWING TEACHERS By Lauren S. Irwin, Esq. 1 Upton & Hatfield, LLP 10 Centre Street P.O. Box 1090 Concord, NH lirwin@upton-hatfield.com 1 Thanks to Brooke Lovett Shilo, our legal extern from UNH Law, for assistance with these materials.

2 INTRODUCTION When considering terminating or non-renewing a teacher, school districts must follow very specific New Hampshire statutory law governing teacher dismissal and non-renewal. RSA 189. In addition, when making decisions regarding dismissal or non-renewal of teachers, school districts must be aware that there are other employment laws that could cover the situation. These materials are intended to briefly present the statutory requirements as well as the other employment law considerations. A. Removal STATUTORY REQUIREMENTS RELATING TO TEACHER DISMISSALS AND NON-RENEWALS 2 The superintendant may remove a teacher for cause. RSA 189:31. After a teacher is removed, the school board must decide whether to terminate the teacher or reinstate the teacher to a teaching position. Id. Between removal by the superintendent and the school board s decision, the teacher remains an employee of the school district. Id. B. Dismissal The school board may dismiss a teacher before the teacher s contract expires if the teacher: (1) is immoral; (2) has failed to maintain competency standards; or (3) does not conform to regulatory standards. RSA 189:13. A school board must terminate a teacher who has been convicted of homicide, child pornography, aggravated felonious sexual assault, felonious sexual assault, or kidnapping. 189:14-d. RSA 189:13 states that a teacher cannot be dismissed without having previously been granted a full and fair hearing. This language entitles the teacher to a 2 Collective Bargaining Agreements and individual contracts must also be reviewed when determining grounds for dismissal or non-renewal. 2

3 more formal hearing, on the record, with an opportunity to cross-examine witnesses. The teacher may choose to have either a public or private hearing. RSA 91-A:3, II(a). Customarily, the Rules of Evidence do not apply to the hearing. Following the hearing, the school board provides the teacher with a written decision. A teacher dismissed by the local school board under RSA 189:13 may file a breach of contract (assumpsit) claim in state court to recover wages lost during the remainder of her contract period. RSA 189:14 Under RSA 189:14, the teacher s recovery is limited to contractual damages as the statute does not appear to permit reinstatement as a remedy. Additionally, the New Hampshire State Board of Education has recently refused to hear an appeal of a dismissal by a local school board under RSA 189:13. C. Non-Renewal A teacher with a professional standards certificate who has taught for one or more years in the same district must be notified in writing of the school s decision not to renew the teacher s contract for the upcoming school year. RSA 189:14-a(I)(a). The school district must notify a teacher of its decision not to renew the teacher on or before April 15 th or within 15 days of adoption of the school district s budget, but not after the second Tuesday in May. Id. A teacher who has been notified of non-renewal can request a hearing if: the teacher has taught for five consecutive years in the teacher s current school district; or the teacher taught for three or more consecutive years in any school district in the state and for two consecutive years in the teacher s current school district before July, 1, RSA 189:14-a (II). A leave of absence does not disrupt the computation of consecutive service. Id. Time that a teacher works 3

4 counts towards the computation of consecutive service even if the teacher worked without a contract. McDonough v. Kelly, 329 F. Supp. 144, 147 (D.N.H. 1971). N.H. Admin. Rules, Ed set forth the procedure for teacher non-renewal hearings. In a non-renewal hearing, the burden of proof is on the superintendent. RSA 189:14-a (IV). To prevail, the superintendant must prove the case by a preponderance of the evidence. Ed (e)(20). The teacher may choose to have either a public or private hearing. RSA 91-A:3, II(a) & Ed (e). Except for cases of non-renewal due to a reduction in force (which may not be based solely on seniority), the grounds for non-renewal are determined at the sole discretion of the school board. RSA a (III, IV). Rule Ed requires, among other things, that: testimony be presented under oath; each party is afforded the opportunity to cross-examine witnesses; and the hearing is recorded. Id. Either party may be represented by counsel. Id. However, prior to the hearing, a party is not entitled to the other party s expert witness reports. Appeal of Sch. Admin. Unit 44, 162 N.H. 79, (2011). The rule also specifies that the Rules of Evidence do not apply to the hearing. Ed (e)(12)(c). All board members who vote on a teacher s termination must be present at the hearing. See McDonough, 329 F. Supp. at 150. The school board must provide the teacher with a written decision after the hearing. Ed (e)(22). OVERVIEW OF SIGNIFICANT EMPLOYMENT LAWS THAT COULD IMPACT TEACHER DISMISSALS A. Family and Medical Leave Act The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees with up to 12 weeks of unpaid leave within a 12 month period for a qualifying 4

5 circumstance. 29 C.F.R (a). The FMLA applies to all educational institutions. 29 C.F.R (b). Special rules apply to schools when determining when employees may take FMLA leave. See 29 C.F.R An employer may not refuse an eligible employee from taking FMLA leave, discourage an employee from taking FMLA leave, or discriminate against an employee for taking FMLA leave. See 29 C.F.R (a). Employees are eligible for FMLA leave if they have worked more than 1,250 hours within the last 12 months, and they have been employed for at least 12 months. 29 C.F.R (a). There is no requirement that the 12 months are consecutive if the break between periods of employment is not more than seven years. See 29 C.F.R (b). Circumstances that qualify for leave include: birth of a child and care for a newborn child; placement with the employee of a child for adoption or foster care; care of a spouse, child, or parent with a serious health condition; a serious health condition that makes the employee unable to perform the job; exigency arising from a family member s military service; or care for a family member who is an injured service member. See 29 C.F.R (a). When an employee takes FMLA leave, an employer is required to maintain the employee s health benefits, return the employee to an equivalent position with equivalent pay when the employee returns to work, and is prohibited from depriving an employee of a benefit that accrued prior to taking FMLA leave. See 29 C.F.R An employer who violates an employee s rights under the FMLA may be liable for compensation and benefits lost by the employee as a result of the violation, and other monetary losses due to the violation. 29 C.F.R (b). In addition, a court may award equitable relief in the form of reinstatement or promotion. Id. Finally, a court may award attorneys fees and costs to a prevailing employee. B. Americans with Disabilities Act 5

6 The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) is a federal law that requires an employer to make reasonable accommodations for an employee with a qualifying disability and prohibits an employer from terminating a qualified employee because of an actual or perceived disability. To comply with the ADAAA an employer should: (1) determine whether the employee is disabled and (2) determine whether the employee can perform essential job functions with or without reasonable accommodation. An employee is disabled under the ADAAA if the employee has a physical or mental disability that substantially limits one or more of the following activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, or working. 42 U.S.C (1). An employer may require a medical examination and/or inquiry of a current employee to the extent it is job-related and consistent with business necessity. 29 C.F.R (c). Once an employer determines that an employee is disabled, the employer is obligated to engage in an interactive process to determine whether the employee can perform essential job functions with or without reasonable accommodation. Appendix to 29 C.F.R (c). An employer s failure to engage in this process may give rise to liability. Id. An employee cannot be discharged because of disability discrimination or failure to reasonably accommodate, in retaliation for an employee s request for accommodation, or for raising a disability complaint. Damages include lost pay and benefits, compensatory damages, punitive damages, and attorneys fees and costs. C. Title VII of the Civil Rights Act of

7 Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin or retaliating after an employee asserts a right under the statute. 42 U.S.C. 2000e-2. An employer may be liable for lost wages, court costs, compensatory damages, punitive damages, and attorneys fees and costs. See 42 U.S.C. 2000e-5(g),(k). In addition, a court may order equitable relief such as reinstatement or promotion of the employee. Id. D. Uniformed Services Employment and Reemployment Rights Act Under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), an employer may not discriminate or retaliate against an employee on the basis of an employee s service or application to serve in the armed forces. 20 C.F.R USERRA applies to all employment positions with covered employers, including employees employed in a brief and/or non-recurrent position. 20 C.F.R If an employer violates an employee s rights under USERRA, the employer may be liable for lost wages and benefits, liquidated damages, and attorney s fees and costs. 43 U.S.C. 4323(d). In addition the court may require the employer to comply with the USERRA. Id. E. New Hampshire Employment Discrimination Statute: RSA 354-A RSA 354-A is the state law equivalent of Title VII. Like Title VII, it prohibits discrimination on the basis race, color, sex, or national origin. See RSA 354-A:7 (I). In addition, it prohibits discrimination on the basis of age, 3 marital status, sexual orientation, or physical or mental disability. Id. The statute also prohibits an employer from requiring an employee to retire at a certain age or after a certain number of years of service. RSA 354-A:7 (IV). 3 The ADEA is the federal law that prohibits age discrimination. 7

8 The statute s definition of the word sex includes pregnancy and related medical conditions. RSA 354-A:7 (VI)(a). In addition to prohibiting discrimination based on pregnancy, our state law also requires an employer to allow a female employee to take a leave of absence for temporary disability resulting from pregnancy, childbirth, or related medical conditions. Id. at 354-A:7(VI)(b). The length of the leave is not a set time; it depends on the doctor s opinion of the employee s period of temporary disability. Upon return from a pregnancy related leave, an employer must make the employee s original position or an equivalent position available to her upon return. Id. Unlike FMLA leave, the pregnancy leave provisions under 354-A:7 only protect female employees. An employer who violates this statute may be liable for back pay, front pay, compensatory damages, administrative fine, enhanced compensatory damages, and attorneys fees and costs. RSA 354-A:21(II)(f). Willful violation of RSA 354-A could result in criminal prosecution. See RSA 354-A:24. F. New Hampshire s Whistleblower Statute Under New Hampshire law, it is unlawful to discharge or discipline an employee who, in good faith: (1) reports a violation of a law; (2) refuses to participate in an activity the employee believes to be a violation of a law; or (3) participates in a hearing or investigation which concerns a violation of law by the employer. See RSA 275-E:2. Additionally, the statute protects public employees who report activities or information that, in the employee s reasonable belief, show a gross mismanagement or waste of public funds, property, or manpower, or evidence of an abuse of authority or a danger to the public health and safety. RSA 275-E:9. If an employer is found to be in violation of the whistleblower statute, the labor commissioner may order reinstatement, back, pay, fringe benefits and seniority rights, and/or injunctive relief. RSA 8

9 275-E:4. In addition, a whistleblower case may now be filed in a New Hampshire Superior Court and the prevailing employee may recover attorney s fees and costs. RSA 275-E:2(II). 9

10 G. New Hampshire Common Law Wrongful Termination An employee may claim wrongful termination if he or she was terminated from employment in violation of public policy for refusing to take actions that public policy would condemn or for taking action that public policy would encourage. Cloutier v. Great Atlantic & Pac. Tea Co., Inc., 121 N.H. 915 (1981). This type of claim may be brought in conjunction with a whistleblower claim if the employee claims the termination was because the employee complained of illegal activity (taking action that public policy would encourage). In addition, a wrongful termination claim may be based on other types of public policy acts including, but not limited to, reporting safety concerns/refusing to work in unsafe work environment, reporting/refusing to participate in unethical conduct, and/or filing a workers compensation claim. Damages for wrongful termination include lost wages and benefits, emotional distress, and potential enhanced compensatory damages. CONSIDERATIONS THAT SCHOOL DISTRICTS SHOULD EXPLORE BEFORE ENDING A TEACHER S EMPLOYMENT A. FMLA, ADA, Title VII, and NH RSA 354-A Considerations Is the termination due to absences that could be related to FMLA leave or ADA disability? Is the employee pregnant, on a maternity leave, or recently returned from maternity leave? Has the employee asked for any change of duties or other accommodations due to alleged disability (remember plain English requests count)? Is the employee in a protected class due to age, sex, race, creed, color, marital status, disability, national origin or sexual orientation? If yes, is there evidence of unfair treatment based upon protected class? Has the employee recently raised a complaint of discrimination or harassment? Has the employee recently participated in a discrimination/harassment investigation? 10

11 B. USSERA Considerations Is the employee a member of the armed services? Has the employee recently applied to become a member of the armed services? Has the employee recently been on military leave? C. Whistleblower Considerations Has the employee recently complained of alleged unlawful practices or refused to perform a task that the employee believed to be illegal? D. Wrongful Termination Considerations Has the employee recently had a work-related injury and/or filed a worker s compensation claim? Has the employee recently complained about, or refused to do work, citing a safety or ethics concern? E. General Considerations Did the employee raise any of the above issues at the time of termination? Does the employee s personnel file support the reason(s) for the termination? If termination is due to poor performance, have the performance issues been previously raised and documented? Documentation of poor performance helps avoid claims that the real reason is something illegal or against public policy. Is there a statute, school district policy, contract or collective bargaining agreement that covers the performance issue? Have other employees been terminated for the same or similar offenses? CONCLUSION When considering ending a teacher s employment, decision-makers must be careful to comply with the requirements set forth in RSA 189. In addition, there are several other employment laws that must be considered when making termination decisions. Discussing a 11

12 termination decision with legal counsel and noting any recent legally-protected activity will greatly reduce a school district s risk of litigation. 12