PERSONNEL WORKSHOP Blunders and Best Practices

PERSONNEL WORKSHOPBlunders and Best Practices, Employee Absences Issues and Ethics SituationsPresented toIredell-Statesville SchoolsAugust 1, 2013

Jonathan BlumbergTharrington Smith, LLP

2013 Tharrington Smith, LLPIredell-Statesville SchoolsJonathan A. BlumbergTharrington Smith, LLP.August 1, 2013The Excellent Public Schools Act of 2013: Impact on School EmployeesSweeping changes to the personnel laws.Teachers who have not been awarded career status by August 1, 2013 are no longer eligible for career status. No more granting of career status.Teachers with career status may voluntarily relinquish it if they are offered and accept a four-year contract effective July 1, 2014, under a limited special provision, applicable to the top twenty-five (25%) percent of teachers with three or more years of experience.Career status teachers who did not voluntarily relinquish the status shall forfeit career status effective July 1, 2018.Other major changes for Non-Certified Employees, Probationary Teachers, Career Status Teachers and Administrators

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013The Excellent Public Schools Act of 2013: Impact on School EmployeesThe Act phases in changes to the laws from the 2013-2014 school year (Phase I), to the 2014-2018 school years (Phase II), and finally from July 1, 2018 and beyond (Phase III). The provisions of the law will require revisions to Board policies, new contracts, and changes to employment practices. The most significant immediate step is that during the 2013-2014 school year, school districts must identify the top twenty-five (25%) of all teachers with three (3) consecutive years of service, based on performance/evaluations, in order to offer these teachers a four-year contract. Summary of the Act

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders and Best PracticesIssue Spotting

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Spot the Issue A custodian who has been a good employee but has had problems with absences. This year, the custodian was out 9 weeks. He had surgery. His son is ill too. What's the issue?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Spot the Issue A TA has been rude to parents and has not followed directives. The TA filed a complaint about alleged mold in the school, which turned out to be only a minor concern. You want a team player. What's the issue?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Spot the Issue A parent calls to say that she was told by a friend of her daughter that a volunteer coach was seen on the weekend in his car with one of the girls softball players. The daughter has said that there is talk that the two are having a relationship. What's the issue?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Issue Spotting Tips Is there a policy? Is this something I need to report? To investigate? To call HR about? When in doubt, always do more than less.When in doubt, ask for help.

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders and Best PracticesMisconduct CasesHasty Hires makeBIG FIRES!

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Misconduct/Common BlundersFailing to distinguish misconduct from performance casesFailing to reportFailing to conduct an adequate investigationFailing to document/take appropriate action with respect to misconductJonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Misconduct/Common Blunders (continued)Failing to Institute school or systemwide corrective measures during/following any incident:Safeguards. Checks and balances. Remedial Measures. You will be measured best by not what happened but how you responded to it. Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Misconduct/Common Blunders (continued)Failing to incorporate into the evaluation process incidents of misconduct that don't lead to dismissal

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013MisconductComes in many types and varietiesSexual misconductDrugs and alcoholViolence/excessive forceCriminal charges and records and other off-campus misconductInternet and computer misconductThreatsNegligent actsWillful failure to follow a clear, reasonable directiveLying, cheating and stealing (including falsification of records, such as Special Education records)

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance CasesPart of spotting the issue is knowing the rights of the employee:procedural rights and substantive job protections. (How many sticks?)Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases (continued)Part of spotting the issue is knowing the rights of the employee:procedural rights and substantive job protections. (How many sticks?)

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases (continued)at will in the private sector versus at will in the public sector employee during contract, after contractcareer statushandle cases so employee will improve -- we want to retain employees with potentialhandle cases so that, if the employee doesn't improve we have proactively negated the typical argumentsJonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases (continued)THE FORMULA: Clear, written, timely notice of performance deficiency; fair opportunity to improve with assistance; compliance with evaluation procedures; continued documented deficiencies as observed by more than one eye = appropriate personnel outcome. Resignations.

UNIFORM AND CONSISTENT APPLICATION OF THIS APPROACH IS CRITICAL!

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases

AT WILL EMPLOYEES:Assuming at-will employees have no rights1. When a new employee is hired, the evaluator should conduct a probationary evaluation within the employees first three months. The evaluator may conduct a probationary evaluation on an employee who transfers to a position. Employees retained after the probationary period should be evaluated on a yearly basis, unless performance or conduct concerns warrant more frequent review.

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases

AT WILL EMPLOYEES (Contd):2. When an employees annual evaluation includes one or more needs improvement or unsatisfactory ratings and the employee is not recommended for dismissal at that time, the employee should receive a conditional evaluation in no later than sixty (60) working days. A conditional evaluation also may be conducted if an evaluator documents concerns about an employees conduct or performance. The employee must recognize that being placed on a conditional evaluation means that his/her job is in jeopardy and that significant and sustained improvement must be demonstrated for this employee to be retained. The evaluator should consider whether to make a recommendation for dismissal following completion of the conditional evaluation, unless more immediate action is warranted.

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases

AT WILL EMPLOYEES (Contd):3. In completing this evaluation form, the evaluator should include a comment to explain any needs improvement/unsatisfactory rating. If additional space is required, attach a separate sheet for your comments. The evaluator is encouraged to add any pertinent comments for ratings of exceeds.4.The evaluator should discuss the results of the evaluation and any recommended improvements. The employee is encouraged to respond in writing to the evaluation. Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases

AT WILL EMPLOYEES (Contd):5. All evaluations are to be signed by both the evaluator and the employee. A copy will be placed in the employees personnel file and a copy will be provided to the employee.6. All evaluations should be conducted by a school administrator, with input from the classroom teacher.See Sample Confidential Evaluation FormJonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Performance Cases Blunders by EvaluatorsCONTRACT TEACHERS Recommending nonrenewal of a contract teacher because you suppose you can get someone betterRecommending a lengthy (2 or 4 years) for a marginal teacher

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Teacher NonrenewalsThe Legal StandardNonrenewal shall not be for arbitrary, capricious, discriminatory, for personal or political reasons or any basis prohibited by law.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.23Teacher Nonrenewal Procedure2013-2014 School YearMay 15th deadline to provide written nonrenewal recommendation. Notice should inform teacher of 10 day deadline to request information and/or hearing.Teachers right to know the reasons and records in support of nonrenewal recommendationDiscretionary hearingsWaiver of right to receive information and/or hearing for failure to file a request within the 10 day deadlineIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.24Teacher Nonrenewal Procedure2013-2014 School Year(Contd)Deadline for Board nonrenewal decision (June 15th but if teacher files a request for information or the Board grants a discretionary hearing, then July 1st or such later date upon agreement)

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.25Teacher Nonrenewal ProcedureEffective July 1, 2014June 1 deadline to provide written nonrenewal recommendation. Teacher may petition Board for a hearing within ten (10) days of receiving the notice of the recommendation for nonrenewal Deadline for Board nonrenewal decision (June 15th but if the Board grants a discretionary hearing, then within ten (10) days of the date of the hearing or such later date upon agreement)

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.26Teachers NonrenewalsIn Light of the New Teacher Evaluation SystemState Board of Education Policy TCP-C-004Beginning teachers must be rated Proficient on all five North Carolina Professional Teaching Standards on the most recent Teacher Summary Rating Form in order to be eligible for the Standard Professional 2 License. Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.27Teacher Nonrenewals In Light of the New Teacher Evaluation SystemEvaluation System for Non-Career Status TeachersMinimum RequirementsChart

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.28Teacher NonrenewalsBest PracticesComply with the procedures and requirements of the New Teacher Evaluation SystemAdopt a policy creating high standards for performance and renewalsMultiple observers with observations spread throughout the school year in accordance with the school evaluation calendar (four formal observations are required, one of which must be conducted by a peer)A rigorous peer observerPre-Not Proficient MemoProvide timely feedback/documentation throughout the year to address performance/conduct concerns not observable during observationsReflect any performance/conduct concerns on the final evaluation (the final rating form) whether the concerns fit perfectly or not under a specific performance descriptor on the rating formIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.29Teacher NonrenewalsBest Practices (Contd)Joint evaluations signed by the principal and an assistant principal in the case of performance concernsProvide teachers subject to a nonrenewal with an opportunity to resign effective at the end of the school year and provide this opportunity prior to the May 15th (by June 1 starting with the 2014-15 School Year) written nonrenewal recommendationThe Board should provide timely notice of its nonrenewal decision Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.30Performance Cases Blunders by EvaluatorsCAREER STATUS TEACHERS Allowing a career status teacher to languish on the non-summative abbreviated cycleFailure of the evaluator to demonstrate exemplary personal conduct

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders by Evaluators (continued)CAREER STATUS TEACHERS (Contd)Pressing for dismissal in a teacher performance case without an improvement plan: recurring issues with improvement plans - not doing it all; doing it late; doing it alone; not doing your part; not making it outcomes- based, jumping to an improvement plan when a letter of warning was acceptable

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders by Evaluators (continued)Where possible, use SMART goals:SpecificMeasurable Achievable Relevant Time-Framed

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders by Evaluators (continued)Test Scores failing to comply with the laws and rules on the use of standard achievement data in evaluating teachers.EVAAS SBE Policy TCS-C-021The teacher effects described in EVAAS reports are estimates of the effect of a teachers performance on student achievement. If used as a part of a teachers comprehensive evaluation, the EVAAS report should include, at the minimum, an average of three (3) years of teacher specific data. Furthermore, to assure appropriate use of the EVAAS reports, the State Board of Education recommends that teachers, principals, and superintendents receive appropriate professional development regarding analyzing EVAAS report data.Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders by Evaluators (continued)Standard 6 Overall Status Presentation to PANC

NC State Board of Education Policy on Standards and Criteria for Evaluation of Professional School EmployeesTCP-C-006

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013 Effectiveness RatingsHighly Effective RatingNo less than Accomplished ratings per standard on Standards 1-5 for current school year; andRating of Exceeds Expected Growth on three-year rolling average for Standard 6 for current school yearEffective RatingNo less than Proficient ratings per standard for Standards 1-5 for current school year; andA rating of Meets Expected Growth on the three-year rolling average for the current school year Needs Improvement Rating Teacher has three-year rolling average for that school year but cannot meet the criteria for either the Effective or Highly Effective Ratings

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Blunders by Evaluators (continued)Evaluation System for Career Status Teachers ChartTemplate for Moving a Teacher to Summative Cycle/Monitored Growth Plan (Career Status Teachers)

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Improvement PlansImprovement PlanSample completed Improvement PlanDirected Growth Plan or Monitored Growth Plan Letter Template and Sample Completion Letter

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Teachers Resignations Best PracticesDOsLet individual know it is an option, not a requirement.Have a witness present, if possible.Let individual know, as a courtesy, that the principal has recommended non-renewal. A resignation would avoid a non-renewal, but it is the teachers choice.Say that when a teacher chooses to resign, a non-renewal recommendation does not become a part of employees record. Clarify that no one is talking about an immediate end of employment: rather, if the teacher elects to resign, it would be effective at the end of the school year. The teacher would be able to complete the year.With a resignation, a teacher is generally eligible to apply for future positions with the school system, but make no promise of re-employment. A non-renewal makes it very difficult for the employee to be rehired.Give the employee, if asked, additional time to think about it.You may say, Without a resignation, you will receive a formal written recommendation of non-renewal.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.39Teachers Resignations Best PracticesDONTSOffer a favorable referenceOffer to change an evaluationTell the teacher he or she must decide immediatelyTell the teacher he or she cant call someone to talk about it or cant leave the meetingTell the teacher he or she will lose a teaching license if he or she doesnt resignSay or do anything to suggest an employee has no say or choice of optionsComplete the entire resignation form for the individualNegotiate other terms unless with the Superintendents approvalMake promises and representations to the teacher without the expressed approval of the Superintendent or designee.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.40Performance Cases Other Blunders Applicable to All EmployeesBeing too nice (for example: inflated evaluation and disingenuous reference responses)Being meanGetting entangled in employees medical conditionInadequate, inconsistent, or inaccurate documentationRetaliationFailure to set clear expectations and not consistently enforcing the expectations with all staff membersJonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Other Blunders Applicable to All Employees (continued)Not knowing how to respond to excessive absences cases Doing it aloneJonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations1.A first year teacher frequently demeans students during hall duty. What evidence should exist or be developed to reflect this concern? What other steps should you take to address this concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations2.A second year teacher often starts class late and many students are not regularly engaged in learning. What evidence should exist or be developed to reflect these concerns? What other steps should you take to address these concerns? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations3.A second year teacher who is on a monitored growth plan (with goals to address the Developing rating functions/standards from his/her first year) experiences a precipitous decline in performance, with students out of control, fighting, throwing objects, and completely off-task. What evidence should exist or be developed to reflect this concern? What other steps should you take to address this concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations4.A teacher allegedly snaps during class, slamming the door, screaming profanities at a non-compliant student with much spit and drama, and grabbing the student by the collar. What evidence should exist or be developed to reflect this concern? What other steps should you take to address this concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations5.A third year teacher who was on a monitored growth plan during his/her second year, but managed to achieve Proficient ratings on all the standards on his year two Summary Rating Form, repeatedly fails to monitor students between class changes, despite warnings from you, and does not return calls to parents, and this has been a problem for years. What evidence should exist from before or be developed to reflect these concerns? What other steps should you take to address these concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations6.A teacher who has always been rated Proficient on the five standards, but who has received Developing ratings on various elements through the years, has a marginal grasp of the curriculum. What evidence should exist or be developed to reflect this concern? What other steps should you take to address this concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations7.At the start of or during a school year, you realize the students in a career status teachers class are languishing academically. What evidence should exist or be developed to reflect this concern? What other steps should you take to address this concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations8.A career status teacher is allegedly overly familiar with students, sending students email jokes and casual/personal text messages, and driving students on various personal errands without the knowledge of the principal and/or parents. What evidence should exist or be developed to reflect this concern? What other steps should you take to address this concern? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Specific Situations9.A career status teacher on a monitored growth plan is being evaluated on the summative cycle. You conduct an announced formal observation following a pre-observation conference, but you are late in conducting the post-conference (the conference was held on the 13th school day). The formal observation and informal observations reflect continued concerns the teacher relies on busy work and does not provide any differentiated instruction for diverse learners. Further, the teacher is frequently absent. What evidence should exist or be developed to reflect these performance concerns and what should you do about the late post-observation conference? What other steps should you take to address these concerns? Where on the Rubric/Final Rating Form should this be recorded? What are the optional personnel actions during and at the end of the school year?

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Legally and Effectively Responding to Employee Absences IssuesIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.52Family Medical Leave Act (FMLA) allows eligible employees to take 12 workweeks of unpaid, job-protected leave for their own serious medical condition or that of an immediate family member (parent, spouse or child), also allows eligible employees to take same job-protected leave for birth of child or placement of child with employee through adoption or foster care, must have worked 1250 hours previous 12 months

Applicable Legal Provisions53NC Benefits Manual on sick and other leaves allows employees to accrue leave for use as provided, also allows eligible employees to take a leave of absence without pay for up to one calendar year from the date of birth or adoption to care for childAmericans with Disabilities Act (ADA) among other things, prohibits discrimination on the basis of a disability

Applicable legal provisionsADA while essential function can be good attendance, still at risk for ADA issue if disabled employee with excessive absences are treated differently from non-disabled employees with excessive absences.be consistent

54NC Workers Compensation Act among other things, provides compensation to employees who miss work as a result of a workplace injury (7 day waiting period)NC Disability Plan provides income to eligible employees who cannot work due to a disability (60 day waiting period)

Applicable legal provisionsIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.55Sample Excessive Absenteeism Policy

The Board of Education recognizes the vital importance of having a low absentee rate among school personnel in order to provide consistent services and instruction to students. Regular attendance is a duty of employment and an essential function of the job for all school system employees. Any leave taken beyond the amount to which the employee is entitled under state and federal laws and regulations will be considered in assessing the employee's performance. Absences in excess of the entitled legal leave may result in dismissal from service. For the purposes of this policy, entitled legal leave includes sick, annual, personal, and other leave days that an employee accrues under the North Carolina Benefits and Employment Manual, as well as leave protected under the Family Medical Leave Act. Entitled legal leave does not include donated leave or absences where an employee does not use accrued leave (for example, absences arising from a workers compensation or short term disability claim). Additional absences beyond the employee's entitled legal leave may be granted if such an allowance is determined to be in the best interest of the school system. However, the additional leave taken will be considered by the school system when annually assessing the employee's job performance. To the extent permitted by law the school system may consider chronic absences which do not exceed an employee's legal leave amount in assessing the employee's job performance. The Superintendent may develop regulations to further implement this provision. Applicable board policiesIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.56Policy 7520, Family and Medical LeaveSection 8.2, State Benefits Policies

Applicable board policiesThe 12 month period for the purposes of calculating an employees 12 week FMLA entitlement is measured backward from the date an employee uses any FMLA leave. Under this rolling 12 month measurement, each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.57When to notify HRWhen to discuss with an employee an absences concernWhen to document employee absences/concernsWhen to include a negative rating on an evaluation Classified Evaluation Form Evaluation RubricWhen to discipline an employee up to and including dismissalPractical ConsiderationsIdentify on TES best place to include excessive abs. Probably standard 1.58Comply with applicable laws and policies providing protections to employeesBe consistent in addressing absences issuesContinue to be humane and sympathetic while embracing the over-riding importance of maintaining continuity of servicesApply incremental discipline through verbal then written warnings before any final actionBasic PrinciplesIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.59A child nutrition cashier who works 4 hours per day and has a 2 hour per day bus route and has 25 sick leave days has been out for 40 consecutive days. What action may and should the school district take to address the absences?Scenario #1With 180 student days, the employee would not meet the 1250 hour threshold to qualify for FMLA. The absences policy applies and the employee is subject to separation. Jonathan will pull sample warning letters. Best practice is warning, short grace period before separation. Principal retains the discretion to retain employee despite absences based on a history of excellent performance, provided that we at least document in evaluation the excessive absences. Pure excessive absences case that is actionable.60A teacher assistant has been out 50 consecutive days for a serious health condition can you address this concern on the evaluation and/or through disciplinary action? Would it change the outcome if the TA was in his/her first year of employment? What if it was a long-standing TA who had missed 40 days of work in the previous 12 months?Scenario #2FMLA protected so no disciplinary action or notation on evaluation if employee returns at end of leave. First year TA could address because not FMLA protected and should take definitive action. When legally solid, should act. Long standing TA doesnt qualify for FMLA because district looks back 12 months from time of leave request and the 40 days missed would put below the 1250 hour threshold.61A teacher was on FMLA for the birth of a child for 40 days. After returning to work for 3 months, the teacher requests leave to care for her sick husband for 30 days. The teacher is already out of sick and extended sick leave. What action may and should the school district take?Scenario #3District does a 12 month look-back from time of the second FMLA request to calculate the number of available FMLA days. Here, the 40 days plus requested 30 would exceed the 60 days of protected leave. Employee should be told they are only protected for 60 days and leave beyond that is technically subject to the policy. This does not appear to be a case for strong action given the sympathies and the fact that the teacher would exceed FMLA by only 10 days, but some reference to excessive absences should be documented in order to retain consistency. Mrs. Jones exceeded FMLA allowance this year, put on evaluation.62A custodian has been out 2-4 days per month for as long as you can remember. Sick and annual leaves have been exhausted so the custodian is now in unpaid status for the additional sporadic absences. What may and should the school district do? Would the outcome change if the employee was a teacher?Scenario #4Main question is the employee protected by FMLA? Step one principal start asking for notes and share with HR. A factual consideration will be the reason for the absences. HR will undertake to determine whether the leave is FMLA qualifying. If not FMLA qualifying, incremental discipline is in order. If FMLA qualifying, are able to start tracking # of days used so that, if employee exhausts FMLA, absences can then be addressed. If a teacher, remember extended sick leave should be used.63A teacher is frequently late, often leaves early, does not follow the schools procedure for calling in absences, and does not leave emergency lesson plans. The teacher has not provided any medical documentation or stated any serious medical condition. He/she has not been out consecutively for more than 2-3 days at the time and has not exhausted available leave. What may and should the school system do?Scenario #5Main point even though leave has not been exhausted, can absolutely address non compliance with procedures through incremental discipline. It is appropriate to ask for medical notes and to require sign in/sign out. Dont get into half day issue. Suggestion have clear written rules on calling in, signing in and out if required, lesson plans, and other absences-related procedures. Include in handbook, cover in orientation, etc. A failure to call the right person for an absence is one thing, (which still may be addressed), but a total failure to call in for an entire day is a very serious matter. We can certainly note any resulting instances where students may have been left unsupervised. From Wake: An employee who does not timely call in to report his/her absence may be subject to disciplinary action.(4)An employee who repeatedly fails to call his/her supervisor in a timely manner when absent jeopardizes his/her job and shall be subject to disciplinary action up to and including dismissal.(5)In an emergency situation beyond an employee' control in which the employee is unable to notify the school of an unforeseen extended absence, the employee' immediate supervisor must be notified by the seventh day of absence. If an employee is absent for seven (7) consecutive days without notification to the supervisor, the employee shall be deemed to have abandoned his/her job and shall immediately be subject to dismissal.

64A 3rd year teacher was out for FMLA protected leave the month of September, then missed 3 days in October. She continued to be out 2-4 days/month after that. The sporadic leave is not FMLA protected but the teacher has not exhausted sick/extended sick leave. The teachers absences have had a detrimental impact on the continuity of instruction. Parents have complained. She has not received developing or not demonstrated ratings on any past evaluation standard but has received such ratings on elements. Further, the observations from the current year reflect some developing ratings. It is now February 12. What may and should you do? Would your approach change if the teacher is tenured?Scenario #6Main point we will step in hole if overplay the absences concerns since the teacher has taken only protected days and many of the days were FMLA protected. At most, the principal should begin requiring a doctors note. Key point is the stronger approach is to focus on pure performance concerns and follow best practices. Probationary teacher, PNP, observations from multiple individuals, rigorous peer, etc. If tenured, letter moving to MGP, summative cycle, etc. If the absences later violate the absences policy, or if the teacher does not follow absences procedures, we can address at the appropriate time.65Hug the attendance policyEstablish and consistently apply absences procedures (call in, prepare lesson plans, provide medical notes when asked, etc.)Be incremental and consistent Before downgrading an employee on evaluation or otherwise taking disciplinary action based on absences, check with HR to ensure compliance with laws and policiesTake awaysIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.66Ethics: Blunders and Best PracticesIredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.67Blunder:The Bad Role Model BlunderFailing to uphold exemplary standards of conduct in keeping with the duty to be a good role model at all times.Best Practice serve as a exemplary role model for students and staff at all times.Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.68Blunder:The Same Old, Same Old BlunderContinuing to repeat past questionable practices simply because it has always been done this way in the past.Best Practice reevaluate past practices and decisions to assure that future actions are beyond reproach.Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.69Blunder:Blind Eye BlunderLooking the other way is not the best way.Best Practice be vigilant to any questionable issues, concerns or conduct and err on the side of doing more, not less, in reviewing and addressing a matter.Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.70Blunder:The Conflict of Interest BlunderFailing to honor the letter and spirit of the policy prohibition on conflicts of interest.Best Practice avoid even the appearance of using your position as a school system employee for private gain.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.71Blunder:The Good Neighbor BlunderThe good neighbor policy applies to neighbors but not to school funds/property.A neighbor has a root ball that is heavy and you happen to have some heavy equipment at your house and your neighbor wants to borrow it. - Do you let him borrow it? Yes- If you dont have it, could you let him use school system equipment for this? NoThe neighborhood takes up a collection for a neighbors 60th birthday celebration do you contribute? Yes-What about a school system employee birthday party do you use school system money to help contribute to the party? No

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.72Blunder:The Good Neighbor Blunder (contd)Best Practice use school system resources solely for school system purposes, not for any private reasons, however kind or good neighborly. Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.73Blunder:The Back Scratching BlunderA big-time booster parent, who has donated funds to the athletic program wants to hold a family reunion in the school cafeteria free of charge and use the cafeteria to cook, etc., is it okay to say yes as a thank you measure?Best Practice While in private business, giving special treatment to those who do business with you may be effective, in the school setting, you are not at liberty to use public resources to benefit a private party even if the party has scratched the school systems back in the past. Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.74Blunder:The Humanitarian BlunderIf a parent of a staff member passes away due to cancer and you are asked if the school can make a donation to the American Cancer Society:- Is it ok to use school funds for it? Best Practice While it is kind and humane to help a school employee who has a personal need or sympathetic situation, such generosity must be done in a private capacity and school systems resources may not be expended for this purpose.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.75Blunder:The Team Spirit BlunderMeals, gifts and events to bolster moraleIs it okay for the administration to maintain a separate fund that is apart from school system records to use for parties, celebrations and/or gifts?To minimize the burden on staff, the principal really wants staff members to have professional dress in the school environment, Is it ok for the principal to offer $100 for each teacher in order to purchase professional dress for school? No What about purchasing an outfit as a gift for a teacher because of the teachers performance? NoWhat about if it is a situation that assists the students to easily recognize staff members on a field trip - for safety purposes? Yes, if in compliance with policy.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.76Blunder:The Team Spirit Blunder (Contd)Is it okay to purchase food for meal time if: - it is a staff development activity at school is during a meal time and your expectation is that the staff will stay there during meal time? Yes, if in compliance with policy.- it is a regularly held staff appreciation event, where the sole purpose is a social activity? No Best Practice Be a strict steward of public funds and be mindful of public perception.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.77Blunder:The Sense of Entitlement BlunderYears of service, extra efforts, dedication, and distinguished service does not give you added leeway to use school system resources for your personal benefit or the personal benefit of others. Best Practice Avoid even the appearance of using school system resources for personal reasons.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.78Blunder:My Kingdom BlunderDeveloping a mindset that your school or your department is actually your own kingdom subject to only your rule, insolated from the authority of the Superintendent, Board and public scrutiny.Best Practice To report any ethical questions to the Superintendents office beforehand for review and an appropriate decision.

Iredell-Statesville SchoolsAugust 1, 2013Jonathan A. BlumbergTharrington Smith, LLP.79Other Ethical ConcernsFalsification and deceit in Student testingTeacher observations/evaluationsStudent records (including special education records)Employee applicationsMedical recordsReimbursement and other financial records

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Iredell-Statesville Relevant Policies (not an exhaustive list)Policy 7100: Recruitment and Selection of PersonnelPolicy 7300: Staff ResponsibilitiesPolicy 7310: Staff-Student RelationsPolicy 5000: Schools and CommunityPolicy 7825: Confidentiality of Personal Identifying InformationPolicy 7720: Employee Political ActivitiesPolicy 7315: Code of Ethics and Standards of ConductPolicy 5220: Fundraising and SolicitationsJonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Ethical Issues - Best PracticesServe as a exemplary role model for students and staff at all times. Avoid even the appearance of using your position as a school system employee for private gain.Use school system resources solely for school system purposes, not for any private reasons, however kind or good neighborly.While in private business, giving special treatment to those who do business with you may be effective, in the school setting, you are not at liberty to use public resources to benefit a private party even if the party has scratched the school systems back in the past.

Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013Ethical Issues Best PracticesWhile it is kind and human to help a school employee who has a personal need or sympathetic situation, such generosity must be done in a private capacity and school systems resources may not be expended for this purpose.Be a strict steward of public funds and be mindful of public perception.Avoid even the appearance of using school system resources for personal reasons.To report any ethical questions to the Superintendents office beforehand for review and an appropriate decision.Jonathan A. BlumbergTharrington Smith, LLP.Iredell-Statesville SchoolsAugust 1, 2013