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Strategic Legal Practices: Employee Contracting

 
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Dear Charter School Leaders and Friends,

We have long advocated "Strategic Legal Practices" -- making the most of legal opportunities and requirements to improve school quality,  safety and efficiency.

Charter school employment practice offers especially fertile ground, as highlighted in the article below.

We hope you find this helpful.  Please, let us know if you have any questions.  

Best regards,

David Hostetler, Esq.
Director

"Strategic Employee Contracting"

 

Spring is employee contract season.  In over twenty years of education practice, I have reviewed and created many different kinds of employee contracts, depending on school needs and circumstances.

 

Here are a few basic legal principles:

  • Charter schools generally have much flexibility in crafting the terms of their contracts.
  • A contract may exist regardless of whether it is in writing.
  • Contracts can be either "at will" or "specific terms" in nature.
  • An at-will contract allows either party -- the school or employee -- to terminate the agreement any time and for any reason, provided the reason is not illegal (e.g., violations of anti-discrimination or constitutional rules, whistleblower statutes, public policy).
  • A "specific-term" contract is one that clearly indicates a specific duration and/or specific grounds by which it may be terminated. Such a contract can be terminated only for "just (or reasonable) cause" during its term. 
  • An employment contract should clearly state the parties' intent on all points, particularly whether it is at will or for a specific term. (Courts often resolve ambiguities or inconsistencies against the party that drafted the contract. For example, a commonly made mistake is to state that the contract is "at will" but later state that its term is for a specific period of time, such as "the school year." These are contradictory terms, and a court is likely to rule for the employee (i.e., voiding the "at-will" part). 

 

Here are some practice points:

 

  • Schools should consider the strategic benefits of at-will versus specific-term contracts, and which employees should receive which kind.  For example, at-will contracts maximize school employment and dismissal flexibility, but also open the school to greater risks such as employees leaving suddenly, reduced employee morale, and more difficulty attracting quality teachers.
  • Though some school employee everyone at will, a common practice is to issue at-will contracts to support staff and 10-month or 1-year contracts to instructional employees and other professional staff.
  • One of my clients recently adopted the practice of issuing at-will contracts to all new employees (instructional and non-instructional) and, for returning full-time employees, issuing 10-month (or 1-year) contracts. In essence, the first year of employment is a probationary period.   
  • The process of contracting can get complicated, cumbersome, and time consuming.  Simplify it as much as reasonably possible.  For example,
    • minimize annual contract procedures; e.g., for at-will employees, retain them "indefinitely" (year to year) until the relationship is terminated.
    • For proven or "master" teachers and other employees (e.g., 3 to 5 years of high performance and evaluation), issue longer term contracts beyond one year. (Of course, these require "just cause" to terminate prior to the term expiration.)
    • Use one standard "multi-status" contract for all employees that contains "check-off" options to adapt to the applicable type of employment status (e.g., at-will or specific-term; FLSA exempt or non-exempt status, part-time or full-time, 10-month or 12-month, etc.). For a sample, click here. 

 

As always, schools should rely on experienced education counsel to draft or review school contracts and contracting practices.  

 

Contact Information:

Lex-is School Law Services
1289 Fordham Blvd, #251
Chapel Hill, NC  27514

Main Phone:  919.442.8593  

David Hostetler: 919-308-4652 / hos@Lex-is.com


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