personnel directors handouts

Current Topics of a Legal Nature

Kelley Baker and

Karen HaaseHarding & Shultz

(402) 434-3000kbaker@hslegalfirm.comkhaase@hslegalfirm.com

Recent Legal Trends: Not So Good for Boards

Recent Cases

Manning -- pay for a “long-term” substitute teacher

Harvard – what constitutes a “change in circumstances” for a RIF

Central City -- duration clause and pay for unused sick and personal leave

Manning Case

South Sioux City Ed. Ass’n. v. School District, (2009) School hired Manning as a

“long-term substitute” 1st semester 2007-08 Clear agreement Multiple correspondence

Union’s PositionManning was not a substitute

A substitute must take the place of a teacher on some kind of leave

Medical, attend conference, sabbatical, military, etc.

Manning should be paid on salary schedule with full fringe benefits

District’s Position Used long-term subs sparingly Association never negotiated comp Manning employed less than half-

time, not a certificated employee Contract case, not an unfair labor

practice case CIR had no jurisdiction

CIR / Supreme Court District unilaterally deviated from

negotiated agreement Prohibited practice

Manning was not a substitute She was a probationary teacher

[Entitled to all statutory rights of probationary teachers]

Recommendations

Don’t use “long-term substitute” except for actual substitutes

Use a replacement contract for teachers who replace others on long-term leave

Confer with district attorney about special circumstances

Harvard Case Miller v. School District No. 18-0011 of

Clay County• Plaintiff RIFfed when school

contracted with neighboring district for art instruction• NSEA: no RIF if program remains• District Court: ruled for plaintiff• District appealed to Ne. Supreme

Court

Supreme Court Chance to share programs did not

constitute a change in circumstances No RIF because still have art teacher

on staff Seemed to be trying to limit to these

facts?? • Probie vs. Tenured• Communication to neighboring board by

their superintendent

Recommendations

Start the RIF process EARLY Control EVERYTHING Eliminate all stray talk Use multiple data to prove change in

circumstances Distance learning, staff sharing now

questionable

Central City

Standard wage / fringe benefit case Except for continuation clause• 3 years after prior wage case• Previously litigated in Clarkson

case

CIR Holdings – Delete: Number of contract days Negotiated agreement “part of all

teachers’ contracts” Board discretion to:• Terminate pay after absent 60 days•Grant emergency sick days

Make up days when fewer than 175 days of attendance

CIR’s (BAD) Holdings Add contract continuation provision Such provisions in 10 of 14 districtsThis agreement shall continue in full

force and effect until a successor agreement is adopted which is then retroactive to the beginning of that school year.

Pay for unused sick & personal leave

Central City

District appealed bad holdings Supreme Court granted petition to

bypass Supreme Court heard the case Dec. 1 Decision published last Friday

Supreme Court: Duration Duration Clause is mandatory subject

of bargaining Duration Clause doesn’t violate right

of unilateral implementation: “neither orders District to enter into a contract nor acts as a contract for an indefinite term. [T]he … clause set[s] forth the terms of the parties’ agreement until a new agreement can be reached.”

Supreme Court: Unused Leave

Payment for unused leave is prevalent: 10 of 14 schools

Terms of the provision ordered by the CIR not supported

Remanded to CIR to determine appropriate terms of pay for leave

Supreme Court: Dissent Chief Justice Heavican and Justice

Connolly Agree on Sick Leave Disagree on Duration • Extends CIR authority into future

contract years• Violates CIR’s limited authority

Recommendations

Do not agree to a continuation or duration clause voluntarily, but check for prevalence

Hold the line on other issues: NSEA has long-term plan, we should, too!

Keep your fringe benefits in line with other school districts – the CIR is very willing to ignore your excesses

The future of negotiations?

Current Topics of a Legal Nature

Kelley Baker and

Karen HaaseHarding & Shultz

(402) 434-3000kbaker@hslegalfirm.comkhaase@hslegalfirm.com