Public school teachers in New York can earn tenure rights by successfully completing a probationary period. Once a teacher has earned tenure rights, their school district would have to undertake a formal hearing process before disciplining the teacher. The district would have to prove just cause to impose discipline, and the process can be time consuming and costly.

Here are some basic questions that come up about teacher tenure rights in New York:

In What Subject Areas Can Teachers Get Tenure?

According to New York State Department of Education regulations, a tenure area is “the administrative subdivision within the organizational structure of a school district in which a professional educator is deemed to serve.”

The primary tenure areas for teachers hired after August 1, 1975 are:

• Elementary (Pre-K through 6th grade)
• Middle Grades (7th and 8th grades)
• English (Grade 7+)
• Social Studies (Grade 7+)
• Mathematics (Grade 7+)
• Science (Grade 7+)
• Foreign Languages (Grade 7+)

There are also many special subject tenure areas, such as art, driver education, music, and physical education and recreation.

Different tenure area rules apply for teachers in the New York City and City of Buffalo school districts.

Teachers may be assigned to more than one tenure area at the same time.

Do Part-Time Teachers Get Tenure?

Part-time teachers, including most substitutes, usually do not have probationary periods or gain tenure rights. However, a school district can agree to award credit towards tenure to non-full-time teachers.

How Long Is the Probationary Period?

Teachers hired on or after July 1, 2015, start with a 4-year probationary period. Teachers hired before that date, had a 3-year probationary period. The teacher and school district can voluntarily agree to extend the probationary period.

A school district may end a teacher’s employment before the end of the probationary period without undergoing the formal hearing process that would be required once tenure is conferred.

Who Grants Tenure?

School boards ultimately decide, by majority vote, whether to grant tenure rights to a teacher. However, the Superintendent of Schools must first recommend a teacher for tenure before the school board votes on the matter. And if the School Board rejects a Superintendent’s recommendation of tenure, then it must reconsider the matter at another meeting.

Do Tenure Rights Transfer Between School Districts?

No. When a teacher moves to a new school district, they start over with a new probationary period. However, a teacher who had tenure rights in another school district may qualify for a reduced probationary period of 3 years rather than 4 years.

Can Teachers Be Transferred Between Grades?

Yes, as long as the transfer is within the same tenure area. Teachers can only be transferred outside of their tenure area with their consent.

How Do School Districts Discipline Teachers with Tenure Rights?

Typically, by following specific procedures set forth in Section 3020-a of the New York Education Law. School districts must have just cause to impose any discipline on a tenured teacher.

The Education Law does not define just cause generally. However, it does provide that teachers can only be discharged from employment based on the following grounds:

• Insubordination
• Immoral character
• Conduct unbecoming a teacher
• Inefficiency
• Incompetence
• Physical or mental disability
• Neglect of duty
• Failure to maintain certification

The tenured teacher discipline process begins with the school district bringing written charges against the teacher. The teacher then has the option (usually elected) of having a formal hearing on the charges. The hearing is conducted by a neutral, third party hearing officer mutually selected by the school district and the teacher (or appointed by the State Education Department if the parties cannot agree).

At the hearing, both the school district and the teacher may call witnesses and present evidence in support of their respective positions. After the hearing, the hearing officer issues a decision. In the decision, the hearing officer addresses whether the district has proven each of its charges. If the hearing officer finds that the district has proven any of the charges, then they will also decide the appropriate disciplinary penalty. The school board must adopt the hearing officer’s decision within 15 days of receiving it.

If either side disagrees with the hearing officer’s decision, their only recourse is to challenge it in court. The courts, however, are highly deferential to the hearing officer’s decision.

Do Teachers Work During the Disciplinary Process?

That is usually up to the school district. Depending on the nature of the charges, the school district may permit the teacher to continue working if it chooses. This can include a reassignment, even to non-teaching duties, if the duties “bear reasonable relationship to the suspended teacher’s competence and training, and are consistent with the dignity of the profession.”

Even if the school district elects to suspend the teacher pending the hearing process, then it usually must continue to pay the them. However, the hearing officer’s penalty may ultimately include a fine that requires the teacher to repay some or all of the compensation earned during the suspension.

How Long Does the Tenured Teacher Disciplinary Process Take?

It depends on the nature of the charges, the complexity of the case, and various other matters that may be beyond the school district’s control. Some limited situations qualify for expedited procedures. Most cases, however, will take at least several months, and some can last multiple years.

Are There Any Alternatives to the Formal Disciplinary Process for Tenured Teachers?

School districts may counsel tenured teachers regarding misconduct without formally imposing discipline. This may include placing a counseling letter in the teacher’s personnel file. Such letters, and the underlying conduct, can later result in formal discipline. This is most likely to occur when a teacher persists in similar or related misconduct despite the district’s counseling efforts.

In some situations, a teacher may voluntarily accept lesser discipline as an alternative to a hearing. This is most likely either where there is a good chance the teacher may otherwise lose their job or the misconduct is so obvious it would not be worth contesting.

When Should School Districts Seek Discipline for Tenured Teachers?

This is a very case specific determination. Especially because the district must pay the teacher during the process, and usually must retain legal representation as well, it can be very costly to discipline a teacher with tenure rights. But sometimes there is no acceptable alternative.

When a school district has a teacher who either behaves too egregiously or repeatedly acts inappropriately, the tough decision has to be made to seek discipline. The related question is what penalty to pursue. Given the cost and nature of the process, school districts typically seek permanent termination of employment when they have to go to a hearing. If a lesser (or no) penalty results, then everyone is in the difficult position of having a teacher continue employment after the district sought to get rid of them.

What Can School Districts Do To Avoid Having to Discipline Tenured Teachers?

There is no way to prevent all misconduct by employees, including teachers. However, the difficulty in removing a teacher with tenure rights demonstrates the importance of making good initial hiring and tenure decisions.

School districts must be selective in choosing which teachers to give a chance in the first place. Then they need to carefully evaluate them during their probationary periods. Hopefully by doing so, the district will best ensure that teachers that get tenure will be tremendous assets throughout their careers!

The United States Department of Labor will restore a prior practice of issuing opinion letters on questions about the application of federal wage and hour laws.

During President George W. Bush’s two terms in the White House, the Department of Labor Wage and Hour Division issued an average of 28 opinion letters per year. President Obama’s administration did not issue any such opinion letters. In fact, 18 opinion letters written by the DOL in January 2009 were published on the Department’s website but never actually mailed to the party that requested them following the change in command.

History of Opinion Letters

The Department of Labor’s June 27, 2017 official announcement indicates, “The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010.”

The opinion letter process allowed employers or employees to submit factual scenarios to the DOL and receive an official opinion as to whether and how the Fair Labor Standards Act and/or the Family & Medical Leave Act are implicated. A Wage and Hour DOL opinion can be used in defense of subsequent claims of violations. As employers are the ones who benefit from such defenses, some have criticized these opinion letters as “get out of jail free cards” for employers.

Impact of Opinion Letters

Wage and Hour opinion letters are useful not only to the parties that request them, but also to other similarly situated parties, especially employers. Opinion letters are fact-specific and do not provide an absolute legal defense. But they do both (a) provide some legal protection to employers that rely on them and (b) remove ambiguity from gray areas of the complicated laws administered by the DOL’s Wage and Hour Division.

The opinion letters help reduce gotcha situations for employers. The FLSA and FMLA are particularly complex laws with extensive regulations. But the existing formal guidance doesn’t address every scenario that may arise in a particular workplace. Employers are sometimes left to either take excessively conservative approaches or risk costly litigation over technicalities. The ability to proactively raise a question to the DOL and get guidance on proposed courses of action reduces uncertainty.

It is naive to assume that all “conservative” approaches uniformly benefit employees. I have encountered many situations where employees would prefer an approach that poses greater compliance risk to their employers. Accordingly, increased certainty of the legal parameters in these situations can benefit both sides of the employment relationship. Otherwise, managers may have to tell employees that they can’t help them because it creates too much legal risk. Thus, a low cost process that provides more legal certainty creates a win-win.

More To Come

This is just one of many recent changes in approach on labor issues under the Trump administration and new Secretary of Labor Alex Acosta.

In announcing the return of opinion letters, Secretary Acosta emphasized, “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

For more see Trump DOL Already Departing from Obama-Era Positions.

In another clear sign of the policy shift from a Democratic to Republican administration in Washington, D.C., the U.S. Department of Justice has reversed course on a significant labor issue pending before the Supreme Court–class waivers through employment arbitration agreements.

Under the Obama Administration, the National Labor Relations Board repeatedly held that arbitration agreements prohibiting employees from filing class actions violate the National Labor Relations Act. The U.S. Courts of Appeal from different parts of the country have disagreed over whether the NLRB is correct. Last year, the DOJ sought and obtained the right to take one of these cases before the Supreme Court. Now the DOJ has announced that its previous position was wrong.

What are Class Waivers?

Individuals usually may file lawsuits not only on behalf of themselves but also on behalf of other allegedly similarly aggrieved parties. These are known as class or collective actions.

Through arbitration agreements, parties can agree that any disputes between them will not go to court. Instead they will be subject to arbitration. Arbitration is a less formal process where a neutral third party, whom the parties select, replaces the judge and jury . Upon hearing the evidence of the dispute, the arbitrator issues a decision in the case.

Many employers include class action waivers in arbitration agreements that employees must sign as a condition of employment. In other words, if there is a dispute regarding employment issues, each employee’s case must be heard separately.

The NLRB’s Current Position on Class Waivers

The National Labor Relations Act protects covered employees’ right to engage in concerted activity for their mutual aid and protection. Beginning in 2012, the NLRB has consistently ruled that arbitration agreements that prohibit employees from pursuing class actions violate the NLRA.

The NLRB’s position is that since employees have a federally protected right to act together to improve terms and conditions of employment, they likewise have a right to resolve their disputes collectively. The NLRB has not been unanimous in this view. Democratic members of the Board agree on this position, but the Republicans disagree.

DOJ’s Change in Position

On September 9, 2016, the DOJ filed a petition for writ of certiorari with the U.S. Supreme Court in the case of National Labor Relations Board v. Murphy Oil USA, Inc. Through that filing, the DOJ sought to reverse a decision of the U.S. Court of Appeals for the Fifth Circuit that had disagreed with the NLRB’s position. In other words, the appeal to the Supreme Court originally sought to enforce the NLRB position that the employer’s class waiver violated the National Labor Relations Act.

The Supreme Court accepted the Murphy Oil case along with two others challenging Court of Appeals’ decisions in the NLRB’s favor. The cases have been consolidated on appeal. The Supreme Court’s decision will likely create consistency across the country on this issue.

On June 16, 2017, the DOJ filed a brief on behalf of the employers in these consolidated cases. In other words, the DOJ rejects its own arguments from last September.

The DOJ now emphasizes the strong federal policy in favor of arbitration agreements.

Future of Class Waivers

Although it is somewhat unusual for the DOJ to directly contradict itself, it is not at all surprising that the Trump Administration sees this issue differently from President Obama’s. This is not the first indication of a change in federal labor policy. (See my earlier post on the Trump DOL Already Departing from Obama-Era Positions.)

Barring something unforeseen, the Supreme Court is likely to rule on the class waiver issue in the next year. With Trump-appointee Justice Gorsuch now on the Court, it is quite possible that the class waivers will prevail.

At the same time, President Trump has the opportunity to fill vacancies on the NLRB to create a Republican majority. Thus, one way or the other, the NLRB’s current position will probably be “Trumped.”

In the meantime, employers using class waivers in mandatory arbitration agreements may face challenges before the NLRB. Those doing so must weigh the risks of potential unfair labor practice charges against the reasonable possibility of ultimately prevailing if they fight the case out long enough.