Office of CounselNovember 13, 2015

ACADEMIC AFFAIRS LEGAL REFRESHER

LEGAL ISSUES COVERED

Topic

• Overview of Office• Ethics/Code of Ethical

Conduct• Disciplining Different Types

of Employees at UA• Insurance Coverage• Harassment/ Title IX &

Mandatory Reporting• Threat Assessment• FERPA/Student Records• FMLA and ADA Medical

Leave

Lawyer

Mike Spearing, Chief University Counsel

Norma Lemley, University Counsel

Robin Jones, University Counsel

Alexandria Davis, Law FellowKatie Thompson, University Counsel

THE UNIVERSITY OF ALABAMA OFFICE OF COUNSEL

• We are System employees charged with providing legal services to the UA campus.

• Our staff includes 5 lawyers.• We provide legal advice for UA

administrators on a wide variety of legal issues.

• We do not provide personal advice for faculty, staff or students.

• Communications with lawyers are protected by attorney-client privilege.

THINGS TO REMEMBER• The lawyers are not decision makers. That

remains the prerogative of the client.• Just because a lawyer may find no legal

objection to a contract or other document does not mean the deal has been approved by the client.

• Do not forward emails from a lawyer to you to outside parties. It potentially waives the privilege and may include items not to be shared with an opposing party.

• We have become quite adept at identifying “lawyer shopping.”

ETHICS ACT ISSUES

• Ethics Act issues are summarized on the UA website at http://provost.ua.edu/state-ethics-law.html.

• Highlights include:– Filing a Statement of Economic Interests by

April 30 every year for those making more than $75,000

– Mandatory Ethics Training within 90 days of hire

– Textbook selection– Selling textbooks and football tickets– Other use of UA property for personal gain– Holiday gifts

UA CODE OF ETHICAL CONDUCT

• Required by BOT Rule 106.2 (policies.ua.edu)

• Broad statement of aspirations applicable to faculty staff, students, volunteers, contractors and community members. Not detailed set of rules

• Commitment to 8 standards of conduct (next slide)

• Anti-retaliation provision

EIGHT STANDARDS OF CONDUCT

• Provide quality services• Treat individuals with respect• Comply with laws, regulations and policies• Use confidential information responsibly• Acknowledge and manage conflicts of

interest• Safeguard and account for UA resources• Provide a safe environment• Financial integrity

EMPLOYEE DISCIPLINE – TENURED FACULTY

Protected property interest in job Tenure is in position – not in classes assigned, office

location, travel abroad, administrative position, salary, etc.

Faculty Handbook rules Follow progressive discipline & consult with OAA

HR guidelines (verbal, written, etc.) Don’t forget Code of Conduct (AAUP Statement of

Professional Ethics) http://facultyhandbook.ua.edu/ii-code-of-conduct.html

FAR/Fac. Evaluation http://facultyhandbook.ua.edu/x-policy-and-guidelines.html

Possible sanctions: written reprimand, modified research/teaching load, decreased travel funds, zero salary increase, decrease in salary, loss of administrative position, etc.

Cannot revoke tenure without adequate cause: “must be directly & substantially related to performance of academic duties and responsibilities or to fitness to perform academic duties and responsibilities”

One year’s notice for termination (absent moral turpitude)

Mediation and Grievance (Appendix B) (Mediation Committee, Hearing Tribunals)

EMPLOYEE DISCIPLINE – TENURED ENDOWED PROFESSOR

Follow Tenured Faculty Rules Faculty Handbook Rules for Appointment

Appendix M http://facultyhandbook.ua.edu/appendix-m.html

Use OAA Template Offer Letter 5 year term; comply w/ terms & conditions in letter, meet

College/Dean’s performance expectations, comply with additional terms and conditions of MOA establishing professorship and/or Board resolution.   Renewable at sole discretion of Dean.

5 year review criteria: evidence of a record sufficiently consistent in quantity and/or quality to warrant the expectation of continued performance and contributions at an outstanding level. Includes: convincing evidence of outstanding teaching performance and

effectiveness outstanding record of productive research, publication, creative

activity and scholarly achievement appropriate to discipline and field of specialization at a level befitting a senior professor

success in sponsored research initiatives evidence of a continuing record of exemplary academic and

professional citizenship appropriate to the discipline or profession

college citizenship evidence of achievement of a professional status at the

national or international level which will enhance the stature of UA’s faculty

EMPLOYEE DISCIPLINE – TENURE-TRACK No protected property interest in

employment Faculty Handbook rules

Annual review: Identify strengths and weaknesses in performance, make suggestions for improvement, leads to retention decision Each review step is independent recommendation Note: collegiality concerns are supported by courts In review, Dept. Chair may add relevant info to

dossier and/or Dean may send back if misconduct occurring prior to decision

Timing of Notice: Year 1 – March 1 advise if not retaining at year end Year 2 – Dec. 15 advise if not retaining at year end Year 3 – Tenure decision: May 15 advise

employment ends next academic year Mediation and Grievance (Appendix B)

Denial of R/T/P limited to not following procedures - 90 days to file

Progressive Discipline Verbal, written warnings; assignments, etc. – Consult

w/OAA Code of Conduct (AAUP Statement of Professional

Ethics) FAR/Fac. Evaluation http://facultyhandbook.ua.edu/x-policy-and-guidelines.html

EMPLOYEE DISCIPLINE – CONTRACT FACULTY

Make sure OAA approved appointment letter Note when may terminate before end of 3-yr term

(performance, financial, needs of department, violation of University policies, etc.; whenever Dept. Chair, w/concurrence of Dean finds it in best interest)

Note conditions for renewal of 3-year appointment Difference between termination and non-renewal

Faculty Handbook Grievance permitted only if terminate before

scheduled end date of appointment letter Otherwise, grievance only for T/TT faculty

Progressive Discipline Document following staff HR guidelines (Verbal,

written warnings; etc.) – Consult with OAA FAR/Fac. Evaluation

http://facultyhandbook.ua.edu/x-policy-and-guidelines.htm Code of Conduct (AAUP Statement of Professional

Ethics) NTRC Faculty: See list of offenses for immediate

termination If terminate, failure to explain why could present

problems if employee later claims illegal discrimination or retaliation

EMPLOYEE DISCIPLINE – GTA/GRA Graduate School Memorandum of

Appointment Has Dates of Employment – usually fall/spring

semester “Continuation of this appointment to its scheduled termination date

is dependent upon my meeting the performance standards established by this department and compliance with all policies in the Graduate Catalog and general UA employment and student policies. However, the University reserves the right to terminate a GA support package, including all parts, immediately and without prior notice if, in the judgment of the Department Chair and concurrence of the Dean, such action is warranted. … To the extent my appointment is extended beyond the termination date listed above, I agree that my continued appointment is subject to the same terms and conditions noted above.”

No grievance mechanism/appeal Unless GTA alleges discrimination or retaliation – then

refer to appropriate office (UAct) Discipline

May document following staff HR guidelines Dean’s Office needs to approve termination – notify

OAA Termination vs. failure to give new appointment If terminate, failure to explain why could present

problems if employee later claims illegal discrimination or retaliation

EMPLOYEE DISCIPLINE – AT WILL EMPLOYEE No contract

Office/clerical/professional/ technical/ administrators – all non-faculty rank)

Staff Handbook Does not create a contract or state terms of

employment Either employee or UA may terminate relationship at

any time, for any reason, with or without notice (except illegal discriminatory or retaliatory reason)

Six Month Introductory Period: provides for ongoing feedback and counseling; supervisor or employee may terminate w/ or w/out notice; no right to Staff Dispute Resolution Process

Beyond 6 months – Consult with HR Partner Employee Counseling & Progressive Discipline Policy

http://hr.ua.edu/hr-policy-manual#2 (# 400) Failure to follow progressive discipline steps can provide

employee with proof that discrimination/ retaliation motivated the termination

Staff Dispute Resolution Process http://hr.ua.edu/hr-policy-manual#2 (# 401) Applies to non-faculty, regular FT & PT employees, not on

contract Reviews claims of misapplication of UA policy, procedure, or

practice Not applicable to questions re: employment decisions, work

assignments, promotions, pay raises, employee performance evaluations, disciplinary actions, terminations or other decisions made in the exercise of legitimate management rights, including elimination of an employee’s position.

Not for illegal harassment/discrimination

INSURANCE COVERAGE

• Office of Risk Management – Bob Pugh, 8-4534

• Comprehensive General Liability Coverage• UA will defend and indemnify for judgment as long as

employee is acting within line and scope of employment• Examples of NOT acting w/in line & scope

– Failure to keep performance evaluation/reprimand confidential (UAB dept chair paid over 650,000 in damages)

– Consensual Relationship Policy Violation– Ethics violations

• Promptly notify Office of Counsel of potential claims & cooperate with us in providing defense

• Health Care Units: Professional Liability Trust Fund (Linda Mittleman, UAB Risk Management)

• http://www.ua.edu/uact/• Contact information for reporting• Harassment/discrimination, sexual misconduct,

domestic and dating violence, retaliation• Code of Student Conduct violation• Child abuse or neglect• Alarming/threatening behavior• Confidential counseling for sexual violence,

etc.• Criminal Violation• Compliance and Fraud Hotline

SEXUAL MISCONDUCT• Sexual Misconduct (Title IX) http://titleix.ua.edu/

– Covered by UA’s Sexual Misconduct Policy– Prohibits offenses such as: • Dating violence• Domestic violence• Stalking• Rape• Statutory rape• Sexual assault• Sexual contact• Sodomy (non-consensual)• Indecent exposure • Fondling• Incest• Sexual exploitation• Sexual harassment, and • Any sexual act that occurs without consent of victim or that occurs

when victim is not in a state that enables them to give consent.

SEXUAL MISCONDUCT• Reporting Sexual Misconduct

– Responsible Reporting Official (RRO): RROs include employees, acting in their official University capacities, in the Office of the Title IX Coordinator, Office of Student Conduct, UAPD, the Designated Harassment Resource Persons, Resident Advisors and Community Directors in Housing and Residential Communities, Director of Equal Opportunity Programs/ University Compliance Officer and Human Resources Partners for employees only, and non-student University employees in a senior management role with overall responsibility for the daily operations of an academic, support or operational unit, such as Deans, Vice Presidents, Department Chairs, and Directors.  

– Designated Reporting Official: A subset of RROs, and includes the Designated Harassment Resource Persons, Director of Equal Opportunity Programs/ University Compliance Officer, and employees in the Office of the Title IX Coordinator, Office of Student Conduct, and UAPD.  Faculty members, graduate teaching or research assistants, and undergraduate student employees are not generally considered RROs.

SEXUAL MISCONDUCT• Dealing with Sexual Misconduct Reports

– If individual is under 18 years of age, contact UAPD (mandatory report).

– Report to RRO: When an RRO knows or reasonably should know of an alleged offense, the University is deemed to have notice of the alleged incident and will take appropriate action, including measures aimed at ending the inappropriate conduct, preventing its recurrence, and remediating its effects.  • When a Complainant contacts an RRO, that official shall make a reasonable

effort to advise the Complainant or other reporting party about (1) the RRO’s duty to inform the Title IX Coordinator about the incident (e.g., the names of the individuals involved; the time, place, and location; etc.), (2) the option of the Complainant or other reporting party to request that the Respondent not be informed of the identity of the Complainant (but that request may limit the University’s ability to end the inappropriate conduct, prevent its recurrence, and remediate its effects), and (3) the fact that the Complainant or other reporting individual may share the information on a strictly confidential basis with professional mental health counselors on campus or the Women and Gender Resource Center, without the Title IX Coordinator being informed of the individual’s identity. 

SEXUAL MISCONDUCT• Dealing with Sexual Misconduct Reports

(cont.)

– Report to other UA employees, students, & visitors: Employees, students, and visitors, are encouraged to advise the Complainant of the role of the Designated Reporting Officials and/or strictly confidential reporting channels and/or are encouraged to share information with the Title IX Coordinator.

– Women & Gender Resource Center• South Lawn Office Bldg, Suite 2000 (Jackson Ave.)• 348-5040 / wrc@sa.ua.edu

HARASSMENT• UA Harassment Policy (http://

eop.ua.edu/harrassment.html)– Defines inappropriate harassment and includes factors to

determine if harassment exists– Encourages prompt reporting of inappropriate incidents– Requires supervisory personnel to educate, sensitize, prevent,

and stop illegal harassment– Outlines Reporting/Complaint Channels

• Designated Harassment Resource Person– HR (employees) or UA Compliance Officer in the Office

of Equal Opportunity Programs (students/employees) or Provost (both)

– Prohibits retaliation against those that report harassment or participate in an investigation of potential harassment

HARASSMENT• Examples of inappropriate harassment

─ using epithets, slurs, negative stereotypes ─ threatening, intimidating, or engaging in hostile acts

that relate to a protected characteristic ─ offensive jokes or pranks targeted at members of a

protected group ─ placing on walls, bulletin boards or elsewhere on UA's

premises, or circulating in the workplace by oral, written, electronic or graphic means any material that belittles, mocks or shows hostility toward a person or group because of protected characteristics

• Look at totality of circumstances– Frequency, severity, circumstances– Perspective of a reasonable person

BEHAVIORAL THREAT ASSESSMENT

• If individual (student, employee, visitor) appears to be an imminent threat to self or others, call UAPD (348-5454) immediately.

• http://threatassessment.ua.edu/ – Behavioral Intervention Team (Students)– Threat Assessment Team – Threat Assessment Specialist (Charlie Dorsey)– How to identify disturbing conduct– How to report (*When in doubt, report)– How reports are handled

EMERGENCY SITUATIONS• Any information/situation noting an imminent threat to one’s safety or the safety of others

should be considered as an emergency and immediately reported to The University of Alabama Police Department (UAPD).  To contact UAPD, call 911 or (205) 348-5454.

Examples of EMERGENCY SITUATIONS:• Possession of a weapon (guns, knives, etc.) on UA property• Possession of a bomb or bomb-making materials on UA property• Physical assault or attempted physical assault (with or without weapons) on UA property• Explicit threats to inflict physical harm to one’s self or others

 NON-EMERGENCY SITUATIONS• Any information/situation involving a threat of violence or alarming and/or disruptive

behavior which is clearly not within the above-detailed “Emergency Situation” category should be reported as follows:UA Student – If the behavior involves a current UA student, the information should be forwarded to the chairperson of the BIT (Dean of Students Office – (http://dos.ua.edu/), (205) 348-3326) BIT is headed by Amelia Bomar, Student Care & Well- Being Office, akbomar@sa.ua.edu, 8-0456, Located in 2520 Ferguson CenterUA Faculty - If the behavior involves a current UA faculty member, the information should be forwarded to the Dean’s Office of the involved College/School and to HR Partners (http://hr.ua.edu/hr-partners)UA Staff – If the behavior involves a current UA staff member, the information should be forwarded to the Vice-President’s Office of the applicable division and to HR Partners (http://hr.ua.edu/hr-partners)UA Visitor - If the alarming/threatening behavior involves a visitor to the UA community, the information should be forwarded to UAPD – (205) 348-5454

FERPA

What is it?The Family Educational Rights and Privacy Act of 1974, a federal law meant to give students access to their educational records while limiting third party access.

What does it cover? • Students

A student is defined as an individual who is enrolled and “in attendance.”

• Educational Records- records that:1. Contain personally identifiable information directly

related to the student; and 2. Are maintained by an educational institution.

PRIMARY STUDENT RIGHTS UNDER FERPA

• REVIEW their own educational records

Students can make a request in writing to review their records and must be allowed to do so within 45 days. There are some limitations to what they can access.

• SEEK TO AMEND their own educational records

Students can challenge and seek to amend records that they believe are inaccurate, misleading, or in violation of their rights.

• LIMIT DISCLOSURE of their own educational records to third parties

Students can generally decide what can and cannot be disclosed.

GENERAL FERPA DISCLOSURE RULE

• As a general rule of thumb, educational records of a student should not be disclosed without signed, dated written consent from all relevant students. The consent form must provide basic information about the disclosure, including general identification of the records to be disclosed, the purpose for which they may be disclosed, and the person to whom they may be disclosed.

• There is a duty to notify not to re-disclose.

FERPA CONSENT REQUIREMENT EXCEPTIONS

The relevant regulations set forth multiple exceptions to FERPA’s general student consent requirement for disclosure. Most of the exceptions to the general confidentiality mandate are permissive rather than mandatory.

Examples of Consent Exceptions:• Directory Information- Unless a student has opted

to prevent disclosure, a school can release “directory information” without student consent.

• Other School Officials- Information can be released to other school officials who have a “legitimate educational interest” in the information.

FERPA CONSENT REQUIREMENT EXCEPTIONS

• Parents- Information may be released to parents in several circumstances, including if the child is listed as a dependent on the most recent tax form and if there is a violation of drug and alcohol policies by a child under 21.

• Litigation- A school can release student information in response to a proper court order or subpoena.

• Health and Safety Emergency- Student records can be released to appropriate parties in connection with an emergency to protect health and safety.

• Multiple other exceptions

SOME HELPFUL TIPS

• Student educational records are generally confidential and not to be released without written consent. Err on the side of caution.

• When providing records to a fellow faculty member, the basic principal is “need to know.”

• Faculty have a responsibility to protect records in their possession; student information should only be kept as long as it is valid and useful.

• Papers, projects, and graded exams should not be publicly accessible; if faculty members post grades, they should use a randomly assigned number or a code.

• Faculty members should keep personal notes relating to students separate from educational records.

• Faculty members should not discuss student progress with anyone other than the student without written consent.

• If faculty members have any questions, they should consult the Registrar’s Office or the Office of Counsel.

UA TRAINING RESOURCES AVAILABLE

• UA’s Policy on Confidentiality of Recordshttp://registrar.ua.edu/academics/privacy-guidelines/confidentiality-student-records/

• Tips for Faculty and Staff http://registrar.ua.edu/academics/privacy-guidelines/ttf-release-edu-info/

• FERPA 101 PowerPoint Training Presentation for UA Employees http://registrar.ua.edu/academics/privacy-guidelines/

OVERVIEW OF THE ADA

• Protects individuals from discrimination on the basis of his/her disability, perceived disability, or association with an individual with a disability;

• Requires employers to provide reasonable accommodations to qualified individuals with a disability.

• Restricts disability-related inquiries.

WHO IS A PERSON WITH A DISABILITY?

• A physical or mental impairment that substantially limits a major life activity;• Very broadly interpreted. • Includes, but not limited to, standing, lifting, eating,

sleeping, thinking, concentrating, bending, communicating, speaking, breathing, reading, working, etc.

• A record of such impairment; • Being regarded as having such an

impairment.

REASONABLE ACCOMMODATIONS

• The ADA requires employers to make reasonable accommodations to qualified individuals with disabilities.

• A reasonable accommodation is any modification or adjustment to a job, practice, policy, or the work environment that allows an individual to perform the essential functions of the job.

• Examples:– Modified work schedule; acquiring or modifying

equipment; reallocating marginal functions of a job; unpaid leave; reassignment to a vacant position.

• What is reasonable will vary, and will be considered on a case by case basis.

• It is the employee’s responsibility to make a request.− No magic words required.

REASONABLE ACCOMMODATIONS

• Employee should be directed to UA’s ADA Coordinator to request an accommodation.– Emily Marbutt (8-7733; emarbutt@fa.ua.edu)

• ADA Coordinator receives confidential medical information to determine:– I the employee is a qualified individual with a

disability; and, if so– What accommodations are both reasonable

and effective in assisting the employee.

JOB PERFORMANCE

• Supervisor may apply the same job performance standards to employees with disabilities that it applies to employees without disabilities.– BUT, must be consistent.

• Tolerating poor performance or lowering performance standards is not a reasonable accommodation.

• A reasonable accommodation may be required to assist an employee in meeting the performance standard.

EMPLOYEE PRIVACY

• Medical information is not shared with a supervisor.

• Accommodation information is shared on a need-to-know basis.

• HR will store all medical information. • No questions about medical status,

medical history, family medical history, or specifics about disabilities or medical conditions.

SERVICE ANIMALS

• A service animal is a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.

• A service animal is allowed in nearly all places on campus that are open to the public or students.

• Service animals do not have to be registered or wear any sort of special identification.

SERVICE ANIMALS

• If it is not obvious what service the animal is providing, you can ask two questions: (1)Is the dog a service animal required because

of a disability, and(2)What work or task has the dog been trained

to perform.

• http://policies.ua.edu/Animal%20Control%20Guidelines%20and%20Assistance%20Animal%20Policy%20(final%20approved).pdf

- UA Policy• http://www.ada.gov/regs2010/service_ani

mal_qa.html- Department of Justice FAQ’s.

OVERVIEW OF FMLA

• Eligible employees with a serious health condition may take up to 12 work weeks of FMLA leave within any 12 month rolling period for a serious medical condition.

• To be eligible, employee must have been employed by UA for at least 12 months and must have worked 1,250 hours in the previous 12 months. – If not eligible under FMLA, need to consider if eligible

under ADA

• Employee can use accrued sick, annual or compensatory time during their FMLA leave. Otherwise, leave is generally unpaid.

QUALIFYING LEAVE REASONS

• Eligible employees with a serious health condition may take up to 12 work weeks of FMLA leave within any 12 month rolling period for a serious medical condition.

• To be eligible, employee must have been employed by UA for at least 12 months and must have worked 1,250 hours in the previous 12 months. – If not eligible under FMLA, need to consider if eligible

under ADA

• Employee can use accrued sick, annual or compensatory time during their FMLA leave. Otherwise, leave is generally unpaid.

EMPLOYEE LEAVE

• FMLA leave can be continuous or intermittent. – Leave to bond with a child must be continuous

• For foreseeable leave, the employee should provide 30 days notice, or as soon as practicable.

• For unforeseeable leave, the employee should provide notice as soon as practicable. – You can require that the employee follow your normal

call-in procedures.

• If an employee is on intermittent leave, you cannot require that he/she bring doctor’s note after each leave. You do need to ensure that the employee is submitting his/her FMLA leave record.

REQUESTING FMLA LEAVE

• If employee is absent for three consecutive days due to a medical condition, notifies you of hospitalization, or otherwise provides you information that he/she may have a serious medical condition, refer them to HR.– Benefits specialists: Jessica Harrison (8-7099);

Jessica Phillips (8-3150); Hiron Stiell (8-8088), and Tiffany Bankes (8-6487).

• HR FMLA policy: https://hr-estus.fa.ua.edu/HRFormsOnlinePub/HR%20Forms%20%20Online/FamilyandMedicalLeave.pdf

• HR FMLA forms: http://hr.ua.edu/policies-and-forms

PROHIBITED EMPLOYMENT ACTIONS

• Employer cannot:– Interfere with, restrain or deny employee’s

FMLA rights;– Discriminate or retaliate against an employee

for having exercised FMLA rights;– Discharge or in any other way discriminate

against an employee because of involvement in any proceeding related to FMLA;

– Use the taking of FMLA leave as a negative factor in employment actions.