I. Right to Union Representation
The Illinois Educational Labor Relations Act (IELRA) guarantees that all educational employees are entitled to union representation when the employee is interviewed by an employer and there is a reasonable fear that the interview may result in discipline. The employee must request such representation. Because of the importance of this right, all educational employees need to be aware of it and make appropriate and timely requests for representation. The right to representation is based upon Section 3(a) of the Act. This provision grants educational employees the right “to organize, form, join, or assist in employee organizations or engage in lawful concerted activities for mutual aid and protection.”
Union representation serves two important purposes. First, it provides the individual employee with an articulate spokesperson who can help the employee present the employer with facts in support of his or her position. Second, it allows the union to monitor overall discipline by the employer and make certain that it is applied fairly and uniformly.
In order to be granted the right to union representation, the employee must request to have the union representative present. This request needs to be made at the earliest opportunity. The employee must also have a reasonable belief that the interview or investigation will result in disciplinary action.
If the employee requests union representation, the employer has the option of agreeing to such representation or proceeding in its investigation without interviewing the employee. The employee, by the same token, can agree to forego union representation if he or she so desires. However, it would be imprudent to do so without first discussing the matter with a union representative. Additionally, the employee should not sign disciplinary documents without first consulting a union representative who can review the documents.
Finally, if the union representative is present at the interview, the employer has no duty to bargin with the representative at the investigatory interview. The representative is present solely to advise the employee and help clarify the employee’s position.
The Illinois Educational Labor Relations Board (IELRB) has held, however, that the right to representation does not apply to a post-observation evaluation conference when a teacher is under remediation. The reasoning of the Board was that there is no reasonable fear that the conference would lead to discipline. The Board also made it clear that if the parties included a provision for union representation at post-observation evaluation conferences in the collective bargaining agreement, such representation would be required.
II. Sources of Educational Employee Rights
An educational employee has a number of different legal protections and rights. These rights come from a variety of sources. In order to determine whether any rights have been violated, each of the following sources should be explored. The rights listed below are by no means exhaustive, but are meant to highlight some of the more important protections.
A. Constitutional Rights
The United States Constitution and the Constitution of the State of Illinois provide a number of protections to all citizens. Two of the more important protections for educational employees are the rights of free speech and due process. Other rights include freedom of religion, freedom from search and seizure, freedom from self-incrimination, and certain privacy rights.
1. Free Speech
A person does not give up his or her right to free speech as a result of becoming a public employee. Free speech encompasses a number of different areas, each with its own specific rules. These include academic freedom, artistic expression, the rights of association (such as with a union), and political speech. One thing that is clear is that educational employees may not be dismissed, transferred, reprimanded, or have their employment rights infringed in any way as a result of exercising constitutionally protected rights of free speech. This applies to probationary as well as non-probationary employees.
The analysis for determining whether free speech rights have been violated requires a number of steps. Much will depend upon the unique facts, which exist. However, it is important to remember that a person must prove with evidence that his or her rights have been violated. Mere “belief” is not sufficient.
The first step in this analysis is to do determine whether “protected speech” is involved. Speech is considered to be protected whether it is made publicly (by letters to the editor, speeches to the public, comments at school board meetings) or privately, such as to an immediate supervisor. However, the subject of the speech is important. Only matters of public concern rather than private concern are protected. If, for example an employee airs personal grievances against a supervisor that pertain solely to his or her individual situation, these are not protected speech. Educational policy, expenditures of public funds, and board positions on collective bargaining would all be issues of public concern.
The next step in analysis is whether the employee’s interest in commenting on matters of public concern outweighs the employer’s interest in promoting efficiency and integrity in discharging official duties. There are a number of factors, which will be considered in weighing the respective rights. These include:
The need to maintain discipline or harmony among co-workers;
The need for confidentiality;
The need to curtail conduct which impedes the employee’s proper and competent performance of his/her daily duties;
The need to encourage a close and personal relationship between the employee and superiors where that relationship calls for loyalty and confidence.
The more disruptive the speech, the less likely it is to be protected. Similarity, the closer the personal contact, such as between a principal and a superintendent or a secretary and his/her immediate supervisor, the less likely it is to be protected.
A board policy directing employees to “go through channels” will not automatically preclude an employee from making a direct appeal to the board of education or board members. Once again, the court will examine how disruptive such direct contact is to the efficient operation of the educational employer.
After overcoming the “protected speech” requirement, an employee must prove that the exercise of the protected speech was a substantial or motivating factor in the decision of the board to take some adverse employment action against him or her. This is an issue of fact, which must be supported by proof.
If the employee is successful in proving that his/her speech was constitutionally protected and that it was a substantial or motivating factor in the employer’s action, the employer is then given the opportunity to prove that it would have reached the same employment decision even in the absence of protected conduct. The theory, as expressed by the courts, is that an employee should not be placed in a better position just because he or she exercised rights of free speech. Similarly, an employer would not be prohibited from disciplining an employee if it would have done so even if no free speech issue were involved. Furthermore, if an employer, after a good faith investigation, reasonably concludes that the employee’s speech was not a matter of public concern and takes action against the employee because of it, the employer’s conduct will not be improper even though it is later determined that the employee’s speech was constitutionally protected. Once again, this will be an issue of fact.
If the employee is successful in meeting his or he burdens of proof, appropriate relief can include injunctive relief, reinstatement to a job or position, damages as proven, and attorney fees.
2. Due Process
Public employees, including educational employees, may not be denied property or liberty rights without due process of law. Liberty rights include things such as a person’s reputation (i.e., being accused of acts damaging to a person’s reputation). Property rights include the right to a job.
In order for an employee to have a property right in the job, there must be a reasonable expectation of continued employment. This expectation of continued employment would be based upon state law (such as tenure statutes), an employment contract, a just case provision in a collective bargaining agreement, or some school board policy guaranteeing continued employment or permanent employment status. Just because an employee believes he/she will continue to be employed is not sufficient.
The amount of process, which is due, varies considerably from situation to situation. It does not necessarily require all the rights normally given in a court proceeding. The more serious the penalty (i.e., discharge), the more “process” that is required.
If a property or liberty right is involved, the minimum process required appears to be a notice of the charges, a discussion of the proof against the employee, and some opportunity to respond. Of course, more rights are often given by statute or contract, and these possibilities are discussed later.
B. State and Federal Statutes
The second source of educational employee rights is state and federal statutes. Once again, there are many statutes, which may affect such employees. The most important of these are tenure statutes, labor laws, and various anti-discrimination statutes. Others include various provisions of the School Code, Unemployment Compensation Statutes, Workers Compensation laws, and laws establishing employee rights to continue or convert group health insurance.
1. Educational labor Relations Act (IELRA)
This important law went into effect January 1, 1984. For the first time, it established a comprehensive framework for dealing with educational employees and employers. This statute covers all employees of public school districts, co-ops, community colleges, colleges, and universities, except for those individuals who are supervisors, managerial employees, students, and part-time academic employees of a community college, as defined by the IELRA.
The Act allows covered employees to organize, form, join, and/or assist unions for purposes of bargaining and other conduct for employees’ mutual aid and protection. There is a process by which educational employees can petition the Educational Labor Relations Board for an election to determine the exclusive bargaining representative. An election is held by the Labor Board among all employee organizations which have filled a petition, and the organization receiving a majority of the votes cast becomes the exclusive bargaining representative. The exclusive bargaining representative is then given the authority to enter into collective bargaining with the employer on behalf of the members of its bargaining unit.
The educational employer and exclusive bargaining representative are required to bargain in good faith for the purpose of achieving a collective bargaining agreement. The duty to bargain in good faith does not require the parties to make concessions or agree to proposal, but does require the parties to exchange proposals in an attempt to reach agreement, reduce any agreements in writing, and incorporate those agreements in a collective bargaining agreement. The employer is required to negotiate with respect to wages, hours, and other terms and conditions of employment. Mandatory subjects of bargaining have been interpreted to include: hours worked by employees; the decision to subcontract work formerly preformed by bargaining unit members; the development and implementation of procedural aspects evaluation plans; the decision and impact, when for economic reasons, of a decision to reduce the number of full-time faculty; and the decision and impact of a decision to reorganize the number and length of teaching periods, among others. All collective bargaining agreements are required to include a grievance procedure ending in binding arbitration and provision prohibiting strikes during the duration of the agreement.
The Act prohibits educational employers from doing a number of things which are considered unfair labor practices. Some of the more important of these unfair labor practices are: interfering, restraining, or coercing employees from exercising their rights under the Act; discriminating against employees for the purpose of discouraging membership in an employee organization or participation in IELRB proceedings; refusing to bargain in good faith, including making unilateral changes without adequate prior notice and bargaining with the exclusive representative; and refusing to comply with a binding arbitration award. Charges are filed with the Labor Board, which investigates the charges and, where appropriate, issues complaints. Hearings may then be held and a decision issued by the hearing officer of the Board. The Board has the authority to issue appropriate orders to prohibit the unfair labor practice and order remedial relief where appropriate.
2. Tenure Laws
The Teacher Tenure Act for elementary and secondary teachers in school districts with less than 500,000 inhabitants is found in Section 24-11, et seq. of the School Code. Those provisions provide a comprehensive procedure for becoming tenured and the protections which attach once that status is attained. More discussion is included later in these materials concerning dismissals.
The Tenure Act covers all school district employees regularly required to be certified under the provisions of the School Code (i.e., teachers, administrators, counselors, etc.). It provides that a “teacher,” who was employed full-time by a school district prior to January 1, 1998, attains tenure by serving two consecutive years as a full-time “teacher” in that district. It further provides that a “teacher” who is first employed full-time by a school district on or after January 1, 1998, attains tenure by serving four consecutive years as a full-time “teacher” in that district. Temporary employment, even if it is full time or part-time, will not qualify toward the completion of the probationary period.
The Community College Tenure is governed by Section 3B-2 of the Public Community College Act. It covers “faculty members” who are defined to include full-time employees of the community college who are engaged in teaching or academic support services. Supervisors, administrators, and clerical personnel are excluded. A faculty member becomes tenured after being employed at the community college for a period for a period of three consecutive school years. The board may extend the probation for an additional year by giving the faculty member notice at least 60 days before the end of the school term, which notice must include the corrective actions that need to be taken. The probationary period may be shortened by local board rule or collective bargaining agreement.
3. Discrimination Statutes
Both federal and state law prohibit an employer from making employment decisions based upon certain prohibited criteria. The employer may not discriminate against an employee based upon race, color, religion, sex, national origin, age, ancestry, material status, handicap, or unfavorable military discharge. The employer may not fail or refuse to hire individuals or otherwise discriminate against them in compensation, terms and conditions of employment, promotion, discharge, discipline, or tenure based upon any of these prohibited criteria. Claims of discrimination can be filed with the Equal Employment Opportunity Commission (EEOC) and the Illinois Human Rights Commission (HRC). Under certain circumstances, claims can then be filed in either federal or state court. In order to prevail in a discrimination claim, the complainant must first prove a prima facie case. He/she must prove that he/she is a member of the protected class (e.g., racial minority), that he/she is qualified for the position in question, and that the position was denied to him/her. The elements of the prima facie case will vary depending upon the type of discrimination involved (pay, promotion, hiring, etc.). The employer then has the opportunity to put some evidence forward of a legitimate and non0discriminatory reason for its action. Finally, the complainant has the burden of proving that the reason given by the employer was mere pretext.
As with any other case, the person who believes he or she has suffered as a result of illegal discrimination must prove the charges with evidence.
C. Collective Bargaining Agreements
A third source of employee rights is the collective bargaining agreement. Provisions in a collective bargaining agreement often go well beyond rights given by statute or by the federal or state constitutions. These documents are also very flexible in that these are new negotiations every few years. Therefore, new provisions can be included to meet changing needs.
If a provision of a collective bargaining agreement is violated, the employee and/or union may file a grievance under the grievance procedures of the contract. Failure to file within the contractually stated period may result in a loss of rights. The final stage of the grievance procedure is binding arbitration. Failure by an employer to comply with an arbitration award can be an unfair labor practice.
D. School Board Policies and Handbooks
A fourth source of employee rights comes from board policies and employees handbooks. If a board establishes official policies, it is bound by these policies. If the employer does not have a collective bargaining agreement with the employee representative, official policies may be a substitute source of employee rights. If a collective bargaining agreement exists, it may serve as a supplement to those rights.
An employee handbook may also be a source of rights. In order to create enforceable rights, the language of the handbook must contain a promise clear enough that an employee would reasonably believe that an offer had been made. Second, the statement must be disseminated to the employee is aware of its contents and believes it to be an offer. This means that the handbook must actually be distributed. Finally, the employee must accept the offer by beginning or continuing to work after he or she becomes aware of the handbook provision. If these conditions are met, the handbook becomes a contract binding on the employer.
III. Evaluations, Dismissals, Non-renewals, and Reductions-in-Force
The law requires all public school districts in the state to develop evaluation plans for its teachers. The plans are to be submitted to the State Board of Education for review. If changes in the plan are made, these changes are also to be submitted to the State Board for review and comment.
Teachers who are on tenure must be evaluated at least once every other year. All evaluations are to be made by an administrator who has received appropriates training by the State Board.
The evaluation must include a personal observation of the teacher in the classroom. Many plans provide for both pre-observation conferences. At the end of the evaluation, a teacher receives a rating of excellent, satisfactory, or unsatisfactory. The evaluation also needs to include a description of the teacher’s strengths and weaknesses. If a tenured teacher is rated unsatisfactory, the district is required to prepare a remediation plan to correct the deficiencies if the deficiencies are remediable. A consulting teacher who has at least five years teaching experience and an excellent rating is selected to assist the teacher in his or her remediation.
A teacher is placed on a remediation plan for 90 school days, unless a collective bargaining agreement in existence on January 1, 1998, provides for a greater time period, i.e., one year. During the 90-school-day remediation plan, the teacher is given evaluations once every 30 days. For those remaining 1-year remediation plans, the teacher is given quarterly evaluations. If the teacher is rated satisfactory at the end of the regular evaluation schedule, he or she is returned to the regular evaluation schedule. If the rating is still unsatisfactory at the end of the remediation period, the teacher must be dismissed, subject to the protections given under appropriate dismissal statutes.
Teachers on probation must be evaluated at least once every year. The evaluation plan under which these teachers are evaluated need not include the same components as the evaluation plan tenured teachers.
A. Non-Tenured Teachers-Secondary and Elementary
There are currently two sets of rules for the non-renewal of non-tenured teachers, depending upon whether the teacher was first employed by his or her district prior to, or on or after, January 1, 1998. As mentioned earlier, teachers first employed by their district prior to January 1, 1998, are subject to a 2-year probationary period. Among this group, a first-year teacher has the least protection under the statutes. In order to dismiss this first-year probationary teacher, the school board need only give written notice, at least 45 days prior to the end of the school term, that it does not intend to re-employ him or her for the following year. No reasons need be given. A second-year teacher has a little more protection, in that he or she must be given written notice of dismissal at least 45 days prior to the end of the school term together with the specific reasons.
Teachers first employed full-time by their district on or after January 1, 1998, are subject to a four-year probationary period. Among this group, first, second and third-year probationary teachers have the least protection under the statutes. In order to dismiss them, the school board need only give written notice, at least 45 days prior to the end of the school term, that it does not intend to re-employ him or her for the following year. No reasons need be given. A fourth year teacher again has a little more protection, in that he or she must be given written notice of dismissal at least 45 days prior to the end of the school term together with the specific reasons. For both two and four year probationary teachers, no right to a hearing is available when the teacher is not re-employed for the following school term, unless there is a specific provision in a collective bargaining agreement, employee handbook or school board policy which provides such right.
A teacher who is terminated in the middle of a contract does have a right to a hearing prior to dismissal. Additionally, non-tenured teachers may not be dismissed for illegal reasons, such as sex, race, age, handicap, or union discrimination.
Barring any provisions in a collective bargaining agreement or employee handbook, probationary teachers do not have any “bumping” or “recall” rights in the event of a reduction in force.
B. Tenured Teachers-Secondary and Elementary
A tenured teacher who is dismissed for cause has a number of protections by statute. Causes for dismissal are classified as either remediable or irremediable. If a cause is remediable, the teacher must be given notice in writing stating specific cause which, if not removed, may result in dismissal. The teacher must be given an opportunity to correct the deficiency. If a charge is considered to be irremediable, no prior warning need be given. A charge is deemed to be irremediable if it causes damage to the students, faculty, or school which could not be corrected if prior notice and an opportunity to correct were given.
If the board decides to dismiss a teacher for cause, written notice of the change must be served upon the teacher. The teacher has ten days in which to request that a hearing be scheduled. If no hearing is requested, the teacher is considered to be discharged.
If the teacher requests a hearing, the State Board of Education is notified and provides to both the board and the teacher a list of five impartial hearing officers. Both parties alternately strike the names to arrive at the person who will serve as the hearing officer, or may request a second list from the State Board. The parties may also mutually agree to select a hearing officer who is not on a list provided by the State Board of Education.
A hearing is then scheduled, at which time the board has the burden of proving by a preponderance of the evidence that cause exists for dismissal (and, if appropriate, that the cause is irremediable). Each side has the right to call witnesses and present documentary evidence. Both sides have a right to be represented by counsel and to cross-examine each other’s witnesses. All testimony is taken under oath and transcribed.
At the conclusion of the hearing, the hearing officer is required to issue a written decision. This decision may be appealed to the courts, but the scope of review is very limited. No new testimony is taken, and the courts may only reverse the decision of the hearing officer are against the manifest weight of the evidence of if a procedural error exists.
Tenured teachers also have certain rights when there is a reduction in force. On or before February 1 of each year the board is required to post a seniority list. This allows a teacher to check his or her relative seniority position. If there is an error in the seniority list, it must be challenged and brought to the school district’s attention immediately.
If the number of honorable dismissals based upon economic necessity in a district exceeds five or 150% of the average number of teachers honorably dismissed in the past three years, the board is required to hold a public hearing on the dismissals prior to making the reductions. Only tenured teachers are counted for purposes of determining whether such a hearing is required.
If the board decides to proceed with the reductions, written notice must be given to the teachers being dismissed at least 60 days prior to the end of the school term together with a statement of honorable dismissal. The board must first dismiss the non-tenured teachers and proceed in reverse order of seniority in any tenured teacher dismissals. Seniority is determined by continuing service with the district unless otherwise specified by a collective bargaining agreement.
A tenured teacher who is retained must be legally qualified to fill the position of the less-senior teacher whom he or she wishes to “bump.” In order to be legally qualified, a teacher must have an appropriate teaching certificate and have fulfilled the requirements established by the State Board of Education for teaching every course in the position into which he/she wishes to “bump.”
A tenured teacher who is honorably dismissed also has recall rights. If a position that a teacher is legally qualified to teach becomes vacant within one calendar year from the beginning of the following school term, he or she is entitled to be recalled in order of seniority. These recall rights extend to two years if the number of honorable dismissals based on economic necessity that occurred at the time the teacher was honorably dismissed for economic reasons exceeds 15% of the number of full-time equivalent positions filled by teachers and other non-supervisory certified staff during the preceding school year.
C. Non-tenured Faculty Members-Community Colleges
Non-tenured community college faculty members must be evaluated pursuant to college rules or by a collective bargaining agreement with the exclusive bargaining representative. Such evaluations are not governed by the evaluation procedures for elementary and secondary teachers. If the board decides to dismiss the non-tenures faculty member for cause based upon such an evaluation, written notice must be given at least 60 days prior to the end of the school term. Specific reasons must be given to the dismissed faculty member upon request.
Non-tenured faculty members have preferential recall rights over new faculty members if they are competent to render the services required by the position. The recall rights exist for a period of 24 calendar months from the beginning of the school term for which the faculty member was dismissed.
D. Tenured faculty Members-Community Colleges
A tenured faculty member may be dismissed for cause upon a majority vote of the board. Upon request of the faculty member, he or she must be given the specific charges upon which the dismissal is based. The dismissal is final unless a request for a hearing is made in writing within 10 days of the dismissal.
If the dismissed faculty member requests a hearing, a hearing officer is selected from a list of five arbitrators supplied by a nationally recognized arbitration organization. The board and the faculty member alternately strike the names to select the arbitrator who will hear the dismissal proceedings.
At the hearing, the board must prove by a preponderance of the evidence that cause for dismissal exists. Both parties have the right to call witnesses and introduce documentary evidence. The parties may be represented by counsel and may cross-examine each other’s witnesses. All testimony is taken under oath and transcribed.
Following the hearing, the arbitrator must issue a written decision. This decision may then be appealed by the losing party to the courts. No new evidence is introduced on appeal. The courts may only reverse a decision of the arbitrator if the evidence or if there were procedural errors.
A tenured faculty member also has certain rights in the event of a reduction in force. Notice must be given at least 60 days prior to the end of the school year together with a statement of honorable dismissal. A tenured faculty member has the right to “bump” any probationary employee or less-senior faculty member who is employed in a position he or she is competent to render. Bumping rights do not include the right to bump part-time teachers.
The honorably dismissed tenured faculty member also has recall rights for 24 months from the beginning of the school term for which he or she was dismissed. Recall is in the order of seniority with the most senior person being recalled first. The recalled faculty member must be competent to render the services required by the position.
E. Colleges and Universities
There are no state statutes governing the tenure rights of faculty members at colleges and universities in the state. A faculty member who has attained tenure at a public college or university has constitutional rights of due process before being discharged for cause. In addition, most if not all of public and private universities or governing boards have policies concerning the discharge of tenured faculty. A collective bargaining agreement, if one exists, may also be a source of rights.
Employees at public colleges and universities, other than principal administrative employees and teaching, research and extension facilities, are protected by the State University Civil Service System. This protection is found in 1101LCS70, et seq. and should be consulted for the particular institutions covered. A collective bargaining agreement may be the source of additional rights and protections.
A non-faculty employee when newly hired must serve a probationary period of from six months to one year. During that time, the employee may be discharged without a hearing. After serving the probationary period, the employee may only be terminated for just cause. The employee must be served with written charges. He or she then has 15 days to request a dismissal hearing. If no hearing is requested, the discharge becomes final.
A hearing is scheduled before a hearing board appointed by the University Civil Service Merit Board. The hearing board makes findings of fact and transmits this together with the transcript of the hearing to the Merit Board. The hearing board makes findings of fact and transmits this together with the transcript of the hearing to the Merit Board. The Merit Board then makes a final decision based upon these recommendations. The decision is subject to review by the courts. However, no new evidence is taken and the decision of the Merit Board may only be overturned if the factual findings are against the manifest weight of the evidence or there are procedural errors.
Non-faculty employees also have certain protections when there is a reduction in force. These protections when there is a reduction in force. These protections only apply to those employees who have completed the probationary period. The least-senior employee must be laid off first. Those who are laid off are placed on a re-employment register and are recalled in the order of seniority.
F. Educational Support Personnel (K-12 and Community Colleges)
Educational support personnel do not have the statutory protection of dismissal only for cause. However, many collective bargaining agreements do have such protections. If a person covered by such a provision is dismissed in violation of a contract provision, a grievance must be filed within the applicable grievance time lines. The final step of the grievance procedure is binding arbitration.
Protections do exist in the case of reductions in force for K-12 ESPs. If the employer decides to reduce the number of educational support personnel employed or discontinue a particular type of service (e.g., cafeteria work), written notice must be given to the affected employees by certified mail at least 30 days prior to the effective date of the RIF. The notice must contain a statement of honorable dismissal and the reason(s) for it. Unless an alternative method is provided by a collective bargaining agreement, reductions must proceed in the inverse order of seniority within the respective “category of position,” with the least-senior employee reduced first. No distinction is made by the statute with regard to probationary or permanent status; thus, all are included in the protection.
If any vacancies occur within one calendar year from the beginning of the following school term, the position becoming available must be offered to the most senior person who was honorably dismissed within that category of position.
A. Sick Leaves
School districts and community colleges are required to give full-time teachers and other employees who work 600 or more hours in a school year at least 10 days of sick leave each year. Sick leave is typically awarded at the beginning of each school term. It may be used for personal illness or serious illness or death in the immediate family. Unused sick leave may be accumulated to at least 180 days. The amount of sick leave may be increased by the collective bargaining agreement or by board policy. A teacher may not be dismissed or have his or her tenure status affected by tempory physical or mental incapacity.
Federal law requires that persons who are disabled because of pregnancy, childbirth, or related medical conditions must be treated the same as other employees. Thus, a woman who is unable to work following childbirth is entitled to use accumulated sick leave for this purpose. Sick leave may not be used for an extended maternity leave unless provided for by a collective bargaining agreement, board policy, or allowed for other non-medical leaves.
A school board may, but is not required to pay employees for unused sick leave when they leave employment. Employees covered by the Illinois Teachers’ retirement System, the State Universities Retirement System, and the Illinois Municipal Retirement Fund may supply unused sick leave to increase retirement benefits. Persons under the Illinois Municipal Retirement System may apply up to 170 days of unused and uncompensated sick leave granted by current and former educational employers in order to acquire one year’s service credit. Those covered by the State Universities retirement System can receive up to one year of service credit if they have 180 to 240 days of unused sick leave. Those covered by the Illinois Municipal Fund can receive up to one year’s service credit if they have 240 days of unused sick leave.
B. Family and medical Leave Act
In general, the FMLA entitles employees to up to 12 weeks of unpaid leave per year for a spouse or an immediate family member with a serious health condition, or when unable to work because of a serious health condition. Employers covered by the law are required to maintain any pre-existing health coverage during the leave period and, once the leave period is concluded, to reinstate the employee to the same or equivalent job. All school districts are covered by the law, although not all educational employees are eligible if he or she has worked for the employer for at least 1250 hours during the preceding 12-month period and the employer has at least 50 employees. Teachers are presumed to have met the 1250-hour requirement.
C. Other Leaves
Several other leaves are provided by statute for teachers. A school board may grant a sabbatical leave to a teacher for resident study, research, travel, or other activities determined by the board to benefit the district by improving the quality and level of experience of the teaching force. The length of the leave may be from four months to one year. In order to qualify for a leave, the teacher must have at least six years of full-time teaching.
During the leave the teacher is paid the normal salary from which may be deducted an amount equal to that paid for substitute teachers. The teacher on sabbatical leave must be paid at least the statutory minimum salary or one-half the normal salary, whichever is greater. After completion of the sabbatical leave, the teacher must return to the district for at least one school term or repay the district the amount received during the sabbatical. A teacher returning from sabbatical leave must be returned to a position equivalent to that held before the leave. A teacher returning from sabbatical leave does not lose any tenure rights.
A tenured teacher who enters military service is protected against loss of tenure status. Similarly, a teacher who is elected to the General Assembly must be given a leave of absence if one is requested, and leaves must be granted for service to a state or national teacher organization that represents teachers in collective bargaining negotiations. Many collective bargaining agreements provide for a variety of leaves including maternity leaves, extended illness leaves, bereavement leaves, and educational leaves. These provisions need to be carefully reviewed where applicable.
A tenured teacher may resign his or her position either by obtaining the concurrence of the board or by giving a 30-day written notice. If the teacher intends to take another teaching position, he or she may resign during the school term only with the permission of the board. If a teacher fails to comply with these notice requirements or in the alternative, fails to obtain the permission of the board, he or she may be found guilty of unprofessional conduct and subject to suspension of his or her teaching certificate for up to one year.
VI. Personnel Files
Under the Illinois Personnel Records Act, an employee may request in writing that the employer permit him or her to inspect any personnel documents that have been or may be used in determining the employee’s qualifications for employment, promotion, transfer, additional compensation, discharge, or other disciplinary action. The employer must grant at least two inspection requests within a calendar year. The right of inspection does not apply to letters or reference, employment test documents (although test scores may be seen), materials related to the employer’s “staff planning” including business development unless those materials are used to determine an individual employee’s qualifications, and certain employer investigatory or security records relating to employee criminal conduct. The law applies to active employees, employees on leave of absence or layoff who are subject to recall, and employees who have left employment within the last year.
Upon request, an employee has the right to submit a written explanation of any statement in his or her file if the employer will not agree to remove or change that statement, as well as obtain a copy of all or part of the information contained in his or her file. Furthermore, an employer is prohibited from divulging and disciplinary report, letter of reprimand, or other disciplinary action to a third party unassociated with either the employer or the employee’s bargaining agent, without giving written notice to the employee by first-class mail. However, an employee may waive such written notice by a written, signed employment application form with another employer.
If an employee is denied his or her right under or an employer otherwise violates the Act, the employee can file a complaint with the Illinois Department of Labor or commence an action in court if the Department fails to act. Furthermore, many collective bargaining agreements are board policies do allow an employee access to his or her files, including the right to review, to make copies, and to place in the file written rebuttals to misleading or false information. If your collective bargaining agreement does not include such rights, this may be an item to be considered in future bargaining.
There are specific instances when educational employees have the right of access to personnel files even if this is not guaranteed by contract. If an employee has filed a grievance or unfair labor practice, pertinent information, including a personnel file, can be requested. Similarly, tenured teachers in secondary and primary schools who are being dismissed for cause have discovery rights. They can request copies of complete personnel files to obtain information necessary to defend their case.
The evaluation law covering primary and secondary teachers also provides that a copy of all evaluations must be provided to the teacher and must be kept on file. Copies of these evaluations should be kept by the teachers in case the need ever arises for their use.
VII. Certificate Revocation and Suspension
A teaching certificate may be suspended for a period of up to one year or revoked upon evidence of immorality, a condition of health detrimental to the welfare of pupils, incompetence, unprofessional conduct, the neglect of any professional duty, the willful failure to report an instance of child abuse or neglect, or evidence that the holder of a certificate has been named as a perpetrator in an indicated report of child abuse or neglect. Suspension proceedings may be initiated by either the regional superintendent or the state superintendent of education, while revocation proceedings may be initiated only by the state superintendent.
Before a certificate may be suspended or revoked, charges must be served on the teacher. The teacher may request that a hearing be held. Suspension hearings may initially be heard before the regional superintendent. If the regional superintendent decides to suspend the certificate, a right of appeal lies with the State Teachers Certification Board, where a new hearing is held. The State Teachers Certification Board then makes a recommendation to the state superintendent with regard to the suspension or revocation.
If a certificate holder is convicted of certain sex or narcotics offenses, the certificate is automatically suspended. If the conviction is reversed on appeal and the person is acquitted following a new trial or charges are dismissed, the suspension is lifted. If the conviction becomes final, the certificate is automatically revoked. A final decision to revoke or suspend a certificate may be appealed to the courts. However, no new evidence is introduced and the administrative decision will only be reversed if the factual findings are against the manifest weight of the evidence or in the case of procedural errors.
VIII. Employee Liability
Educational employees often express concern whether they can be held personally liable for injuries occurring to students or other employees in the course of their work. There are a number of ways in which employees are protected from such liability.
School districts and community colleges are required to indemnify (hold harmless) teachers and other employees against liability arising out of civil rights claims, death and bodily injury, and property damage claims are sought for negligent or wrongful acts occurring during the scope of employment or under the direction of the board. The protection includes the cost of defending such actions as well as any damages which might actually be awarded. This protection would include extracurricular activities as well as anything occurring during normal school hours. Although school districts may purchase insurance to protect all their employees against such liabilities, a new law requires the State Board of Education to provide such insurance coverage to any certified employee who requests it, although to our knowledge, no funds have been appropriated to provide such insurance for the 2002-03 school year. Non-certificated employees are not eligible for this State Board provided coverage, although their districts may still purchase insurance to protect them.
B. Employee Liability Insurance
In addition to this statutory protection, IEA- NEA members are covered by Educators’ Employment Liability (EEL) insurance, which provides additional coverage of one million dollars and monitoring of the legal defense provided by the school district. Although a few activities are excluded, all IEA- NEA members have professional and personal liability protection from the Horace Mann Insurance Companies.
This same EEL protection extends to members who must defend themselves against criminal charges by reimbursing attorney fees and legal coats, up to $35,000 when the member is found innocent of such charges. Some additional coverage is provided for posting bail, or for damage to personal property. All protection this policy affords IEA- NEA members is available only for legal actions that arise out of the member’s educational employment and is subject to some restrictions and exclusions.
In addition, health-related fields such as nursing may purchase additional liability insurance at a low cost through NEA.
C. Standard of Proof
A student who sues a school district or school employee for injuries incurred in the course of school activities must prove more than mere negligence. The student must prove that the school employee was guilty of willful and wanton misconduct. This means a course of action that shows an actual or deliberate intention to cause harm or an utter indifference to or disregard for the safety of others. Therefore, mere carelessness is not sufficient to recover damages.
This high standard of proof makes it difficult to recover damages except in the most egregious of circumstances. As stated earlier, the school board will be required to pay any damages assessed unless they include punitive damages. Even here, your IEA- NEA Educators’ Employment Liability insurance provides protection for such damages.
IX. Open Meetings Act
The Open Meetings Act establishes a policy that public boards, including educational employers, must hold meetings that are open to the public. The board must give notice of the schedule of its regular meetings at the beginning of each year. In most cases, it must give at least a 48-hour notice of any special meetings. Also, an agenda for each regular meeting must be posted at least 48 hours prior to the meeting.
At all meetings, minutes must be taken that are then available to the public. These minutes must include a summary of discussion on all matters proposed, deliberated, or decided, and a record of any votes taken. All sessions, with a few exceptions, must be open taken at open session. Some exceptions to the requirement for open meetings which pertain to educational employers are discussions concerning appointment, employment compensation, discipline, performance or dismissal of specific employees, deliberations on collective bargaining matters or salary schedules, meetings to discuss litigation or probable litigation, and student discipline cases. Minutes of executive sessions must be maintained by the board but need not be made public under most circumstances.
Any final action taken in open session on a matter that was discussed in closed session must be preceded by a public recital of the nature of the matter discussed in closed session. A general description of a confidential matter would be sufficient as long as it informs the public of the business being conducted. In addition, a public body must review semi-annually the minutes of all closed sessions to determine whether confidentiality still exists. After making this determination, the body is required to report in open session and make available for public inspection those minutes that no longer require confidential treatment.
If a board fails to comply with this Act, any person may file suit within 60 days of the alleged violation to force compliance. A court may issue appropriate relief if a violation is found, including requiring a meeting be open, enjoining future violations, ordering that executive session minutes be made public, or declaring any final action taken at a closed meeting to be null and void. Under some circumstances, attorney fees can also be awarded to the prevailing party.
There are a number of different pension systems, which cover various public educational employees. Teachers employed in primary and secondary schools are covered by the Illinois Teachers’ Retirement System. Non-teaching employees in these districts are covered by the Illinois Municipal Retirement Fund. Employees of colleges, universities, and community colleges, including both teachers and educational support personnel, are covered by the State Universities Retirement System.
The pensions provide for a variety of benefits including retirement and disability pensions.
A. Early Retirement
Normal retirement age under the above systems is age 60. Normally, if retirement is taken prior to that time, substantial reductions occur in the benefits paid. However, the Illinois Teachers’ Retirement System and the State Universities Retirement System have special provisions for early retirement without a reduction in benefits. A teacher covered by these systems may retire at age 55 if he or she has at least 20 years service credit. The employee can avoid the reductions for early retirement by making a one-time contribution to the retirement system at the rate of 7% for the lesser of the number of years the member has than 35 years of creditable service. Thus, a member who has benefits based on salary of $30,000, who is 57 years old and has 20 years of creditable service would be required to contribute 21% of $30,000 or a total of $6,300.
The last employer is also required to make a onetime contribution to the pension system. The employer contribution is 20% for each year the employee is under age 60. Thus, in the above example the employer contribution would be 60% of $30,000 or $18,000.
Application for early retirement must be made within six months of the last day of teaching for which retirement contributions were required. The number of persons eligible for early retirement may be limited by a public school district to not less than 30% of those eligible. The number of participants in the State Universities Retirement System may be limited to not less than 15% of those eligible in the succeeding years. If more than this number apply, preference is given to those with the greatest seniority with the particular employer.
The limited Municipal retirement Fund (“IMRF’) has an early retirement program (“ERI’). Under it, a school district must first decide to adopt the program; a district is not required to do so. Once the program is adopted, an eligible employee has 60 days from the effective date of the program to notify IMRF of his/her intent to retire under it. An employee’s retirement date must occur within one year of the effective date of the program. The program allows employees to purchase between one month and five years of age and service credit for the purpose of determining retirement benefits. For every year of service credit purchased, an employee will, in most cases, pay 4.5 percent of his/her highest 12 consecutive months of salary. This payment is first taken from any lump sum payments for vacation, sick leave, and/or personal leave for which the employee is eligible. If this does not cover the amount necessary to purchase the service credit, the remaining amount can be paid in a single sum or deducted from the employee’s pension in 24 equal monthly installments. School districts also have costs associated with an employee retiring under ERI. These costs must be paid for over a period of no less than five years and no more than ten years .A district may not adopt a second ERI program until it has paid off these costs. To be eligible for the program, an employee must be at least age 50 and have at least 20 years of service credit by the date of his/her retirement.
B. Retirement Pensions
Each of the above-mentioned systems has a retirement pension. The amount of the pension is based upon years of creditable service and the salary earned by the employee. To determine the amount of pension to which you may be entitled, it is best to contact the particular retirement system for exact information.
Persons who are members of the Illinois Municipal Retirement Fund are eligible for retirement with a reduced benefit at age 55 with at least eight years of service. Normal retirement age is 60. Participants who retire prior to the normal retirement age (60) but after reaching the age of 55 will have their pension reduced ¼ of one per cent for each month prior to age 60.
Members of the State Universities Retirement System who have 35 years of service may retire at any age. Persons with eight or more years of service may retire at age 55 and persons with between five and eight years service may retire at age 62.
Persons who are members of the Illinois Teachers’ retirement System are eligible for a retirement annuity if they have at least 20 years of creditable service and are age 55. If the member has between 10 and 20 years service, he or she is entitled to a pension at age 60; with between five and 10 years service, the member must be age 62. It should be remembered that in most cases those persons who retire prior to at least age 60 will be subject to reductions in the amount of the pension unless they exercise early retirement rights provided by the pension system.
C. Disability Pension
Each of the above-described pension systems also provides for temporary and permanent disability payments. In order to be eligible for receipt of such payments, a member must have a minimum number of years of service, make an application to the pension system, supply the system with the appropriate physicians’ reports, and provide a statement from the employer that the member is either not receiving payments for salary and/pr that he or she is unable to work. The particular requirements for each system vary and should be checked if the situation arises. Prompt application should be made because the time of making the application will determine whether benefits will be paid and, if so, when they will begin.
If the disability arose out of the person’s employment, the duration of the benefits or their amount are higher for each of the systems other than the Illinois Municipal Retirement System. Appropriate proof is required to receive the higher benefits.
Following the expiration of temporary disability benefits, the member will be eligible for a permanent disability pension. The amount of this pension is in most cases lower than temporary disability benefits.
D. Felony Convictions
Each of the systems provides that members who are convicted of any felony relating to or arising out of or in connection with his or her services as an employee forfeits benefits to which they may be entitled.
XI. Child Abuse and Neglect
A. Reporting Requirements
All educational personnel are required by law to report to the Department of Children and Family Services (DCFS) if they have reasonable cause to believe that a child known to them in their professional or official capacity may be an abused or neglected child. (A report made by an educational employee to the person in charge of the educational institution does not relieve the employee of the duty to report to DCFS.) The identities of reporters, witnesses, and subjects of the report are confidential under law. Traditional privileges such as that between a counselor and student do not apply in cases of child abuse or neglect. Abuse includes such things as physical abuse, a substantial risk of physical or emotional injury, torture, sexual abuse, or excessive corporal punishment. Neglect includes the denial of basic necessities such as food, clothing, shelter, and medical care.
When a school employee makes a report to DCFS, he or she, at the employee’s discretion, may also inform the building principal or the school superintendent that a report has been made. At the community college or university level, such report may be made to the direct supervisor or department chairperson. This person may not interfere with the filing of a DCFS report. If the report to DCFS is made by telephone, a written report must also be filed as a follow-up. Willful failure to file a report where required may be a misdemeanor and can result in the suspension or revocation of a person’s teaching certificate. A person acting in good faith in making a report or participating in an investigation has immunity from civil and criminal liability.
B. Investigation of Reports
The Department of Children and Family Services is required to investigate all reports of suspected child abuse or neglect. If, after an initial investigation, it appears that there is a good-faith indication of abuse or neglect and the person named as the alleged perpetrator is employed in an activity resulting in frequent contact with children and the alleged abuse occurred in the course of such employment, DCFS is required to notify the school district that it has begun a formal investigation.
The investigation is supposed to be conducted in as non-obtrusive a manner as possible. A school employee accused of child abuse has the right to have his or her supervisor, union representative, and attorney present when interviewed by the DCFS representative. An employee accused of child abuse should never speak to the DCFS investigator before first consulting his/her union representative.
Once the investigation is completed, the Department will determine that the report is either “indicated” or “unfounded.” If the Department determines that the report is “indicated,” it is placed on the DCFS Central Registry where it will remain for a minimum of five years. School superintendents have access to information contained on the Central Registry. A superintendent is required to inform the State Board of Education, the school board, and the chief administrator in the school where the alleged perpetrator is employed, that the person has been named as a perpetrator in an indicated report.
Being named as a perpetrator in an indicated report may be grounds for suspension or revocation of a teaching certificate.
C. Appeal Rights
A person named as the subject of an indicated report has the right to request the Department to amend, expunge information from, or remove the report from the Central Registry by filing a request with the Department within 60 days of notification of the indicated report. Upon filing of such a request, the Department will conduct a review of the file and make a decision whether to grant the request. If the request is denied, the subject of the report can then request a hearing with the Department.
At the hearing, the Department has the burden of proving the accuracy and consistency of the report. Decisions of the Department following a hearing are subject to review by the courts. However, no new evidence will be taken in court, and a court may only reverse a decision of the Department if factual findings are against the manifest weight of the evidence or if there are procedural errors.