Education Law Topics: Union & Employment Issues

In Garcetti v. Cevallos, 547 U.S. 410 (2006) the United States Supreme Court held that when a public employee speaks out in his or her capacity as a public employee (and not as a private citizen) the remarks are not protected by the First Amendment and may support disciplinary action by the employer.  In the wake of that decision, questions have arisen as to whether various individuals were, in fact, speaking out in their “official capacity” or as private citizens on matters of public concern.

The IDEA and the ADA are related, but they are not the same.

The beginning premise is simple enough:  When a disabled student requests help under the Individuals with Disabilities Education Act (IDEA)(20 USC §1412) in order to obtain a “free appropriate public education,” commonly known as a FAPE in education law lingo, school districts must develop an Individualized Education Plan (“IEP”) to bridge the gap. 

The First Amendment protects religious freedom and, because of that important right, religious institutions are entitled to an exemption from civil rights statutes that govern employment discrimination.  This principle was at the core of two important decisions, one from the U.S. Supreme Court and another from the California Court of Appeal.

The California Education Code entitles employees to a hearing regarding their dismissal should they request it.  The third district court of appeal has also  ruled that once a school district employee requests a hearing to contest his/her dismissal, the school district cannot simply “dismiss” the case to avoid an award of attorney’s fees.

A decision from California’s Public Employment Relations Board clarifies the rules that apply when an employee asserts that his/her union breached the “duty of fair representation” when handling (or in this case not handling) the employee’s grievance. Here is the nub of the PERB ruling in Jacala v. SEIU:

We have commented previously about the First Amendment free speech rights of public employees.  In Nichols v. Dancer, the law took another step in favor of protecting an employee’s right to associate with colleagues who may be involved in controversial issues.

Sometimes when teachers do what others do, they can get into trouble simply because they are teachers.  A case from San Diego highlights this very problem. In San Diego Unified School District v. Commission on Professional Competence, the court held that a teacher’s act of posting lewd photos and advertising for sex on Craigslist constituted “immoral conduct” and made the teacher “unfit” to continue working in the San Diego school district.

California teachers who have been convicted of driving under the influence (DUI) often ask us about their reporting responsibilities to the Commission on Teacher Credentialing (CTC).  The short answer is that a teacher who is already certificated does not necessarily have to report a DUI conviction at the time it is entered on the record, but a bit of background is helpful.

Public employee unions are required to send a “Hudson notice” to bargaining unit members which must provide an “adequate explanation of the basis for union representation fees, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amount reasonably in dispute while such challenges are pending.  (See Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986.)).

When classified school district employees are laid off due to lack of work/funds, they are subject to being rehired within 39 months.  If rehired, they resume their former employment status.  However, if they are rehired in a different position, the clock, in essence, restarts with respect to gaining permanent status.