ACADEMIC AFFAIRS LEGAL
REFRESHER
Office of Counsel
November 13, 2015
LEGAL ISSUES COVERED
Topic
• Overview of Office
• Ethics/Code of Ethical Conduct
• Disciplining Different Types of
Employees at UA
• Insurance Coverage
• Harassment/ Title IX &
Mandatory Reporting
• Threat Assessment
• FERPA/Student Records
• FMLA and ADA Medical Leave
Lawyer
Mike Spearing, Chief University
Counsel
Norma Lemley, University Counsel
Robin Jones, University Counsel
Alexandria Davis, Law Fellow
Katie Thompson, University Counsel
THE UNIVERSITY OF ALABAMA OFFICE OF
COUNSEL
• We are System employees charged with
providing legal services to the UA campus.
• Our staff includes 5 lawyers.
• We provide legal advice for UA administrators
on a wide variety of legal issues.
• We do not provide personal advice for faculty,
staff or students.
• Communications with lawyers are protected by
attorney-client privilege.
THINGS TO REMEMBER
• The lawyers are not decision makers. That
remains the prerogative of the client.
• Just because a lawyer may find no legal
objection to a contract or other document does
not mean the deal has been approved by the
client.
• Do not forward emails from a lawyer to you to
outside parties. It potentially waives the
privilege and may include items not to be shared
with an opposing party.
• We have become quite adept at identifying
“lawyer shopping.”
ETHICS ACT ISSUES
• Ethics Act issues are summarized on the UA
website at http://provost.ua.edu/state-ethicslaw.html.
• Highlights include:
– Filing a Statement of Economic Interests by April 30
every year for those making more than $75,000
– Mandatory Ethics Training within 90 days of hire
– Textbook selection
– Selling textbooks and football tickets
– Other use of UA property for personal gain
– Holiday gifts
UA CODE OF ETHICAL CONDUCT
• Required by BOT Rule 106.2 (policies.ua.edu)
• Broad statement of aspirations applicable to
faculty staff, students, volunteers, contractors
and community members. Not detailed set of
rules
• Commitment to 8 standards of conduct (next
slide)
• Anti-retaliation provision
EIGHT STANDARDS OF CONDUCT
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Provide quality services
Treat individuals with respect
Comply with laws, regulations and policies
Use confidential information responsibly
Acknowledge and manage conflicts of interest
Safeguard and account for UA resources
Provide a safe environment
Financial integrity
EMPLOYEE DISCIPLINE – TENURED FACULTY
 Protected property interest in job
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Tenure is in position – not in classes assigned, office location,
travel abroad, administrative position, salary, etc.
 Faculty Handbook rules
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Follow progressive discipline & consult with OAA
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HR guidelines (verbal, written, etc.)
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Don’t forget Code of Conduct (AAUP Statement of
Professional Ethics) http://facultyhandbook.ua.edu/ii-code-of-conduct.html
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FAR/Fac. Evaluation http://facultyhandbook.ua.edu/x-policy-and-guidelines.html
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Possible sanctions: written reprimand, modified
research/teaching load, decreased travel funds, zero
salary increase, decrease in salary, loss of administrative
position, etc.
Cannot revoke tenure without adequate cause: “must be
directly & substantially related to performance of academic
duties and responsibilities or to fitness to perform academic
duties and responsibilities”
One year’s notice for termination (absent moral turpitude)
Mediation and Grievance (Appendix B) (Mediation
Committee, Hearing Tribunals)
EMPLOYEE DISCIPLINE – TENURED ENDOWED
PROFESSOR
 Follow Tenured Faculty Rules
 Faculty Handbook Rules for Appointment
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Appendix M
http://facultyhandbook.ua.edu/appendix-m.html
 Use OAA Template Offer Letter
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5 year term; comply w/ terms & conditions in letter, meet
College/Dean’s performance expectations, comply with additional
terms and conditions of MOA establishing professorship and/or
Board resolution. Renewable at sole discretion of Dean.
5 year review criteria: evidence of a record sufficiently consistent in
quantity and/or quality to warrant the expectation of continued
performance and contributions at an outstanding level. Includes:
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convincing evidence of outstanding teaching performance and
effectiveness
outstanding record of productive research, publication, creative activity
and scholarly achievement appropriate to discipline and field of
specialization at a level befitting a senior professor
success in sponsored research initiatives
evidence of a continuing record of exemplary academic and
professional citizenship appropriate to the discipline or profession
college citizenship
evidence of achievement of a professional status at the national or
international level which will enhance the stature of UA’s faculty
EMPLOYEE DISCIPLINE – TENURE-TRACK
 No protected property interest in employment
 Faculty Handbook rules
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Annual review: Identify strengths and weaknesses in
performance, make suggestions for improvement, leads to
retention decision
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Each review step is independent recommendation
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Note: collegiality concerns are supported by courts
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In review, Dept. Chair may add relevant info to dossier
and/or Dean may send back if misconduct occurring prior to
decision
Timing of Notice:
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Year 1 – March 1 advise if not retaining at year end
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Year 2 – Dec. 15 advise if not retaining at year end
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Year 3 – Tenure decision: May 15 advise employment ends
next academic year
Mediation and Grievance (Appendix B)
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Denial of R/T/P limited to not following procedures - 90 days to file
 Progressive Discipline
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Verbal, written warnings; assignments, etc. – Consult w/OAA
Code of Conduct (AAUP Statement of Professional Ethics)
FAR/Fac. Evaluation http://facultyhandbook.ua.edu/x-policy-and-guidelines.html
EMPLOYEE DISCIPLINE – CONTRACT FACULTY
 Make sure OAA approved appointment letter
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Note when may terminate before end of 3-yr term
(performance, financial, needs of department, violation of
University policies, etc.; whenever Dept. Chair, w/concurrence
of Dean finds it in best interest)
Note conditions for renewal of 3-year appointment
Difference between termination and non-renewal
 Faculty Handbook
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Grievance permitted only if terminate before scheduled end
date of appointment letter
Otherwise, grievance only for T/TT faculty
 Progressive Discipline
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Document following staff HR guidelines (Verbal, written
warnings; etc.) – Consult with OAA
FAR/Fac. Evaluation http://facultyhandbook.ua.edu/x-policy-and-guidelines.htm
Code of Conduct (AAUP Statement of Professional Ethics)
NTRC Faculty: See list of offenses for immediate termination
If terminate, failure to explain why could present problems if
employee later claims illegal discrimination or retaliation
EMPLOYEE DISCIPLINE – GTA/GRA
 Graduate School Memorandum of Appointment
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Has Dates of Employment – usually fall/spring semester
“Continuation of this appointment to its scheduled termination date is
dependent upon my meeting the performance standards established by this
department and compliance with all policies in the Graduate Catalog and
general UA employment and student policies. However, the University
reserves the right to terminate a GA support package, including all parts,
immediately and without prior notice if, in the judgment of the Department
Chair and concurrence of the Dean, such action is warranted. … To the extent
my appointment is extended beyond the termination date listed above, I agree
that my continued appointment is subject to the same terms and conditions
noted above.”
 No grievance mechanism/appeal
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Unless GTA alleges discrimination or retaliation – then refer to
appropriate office (UAct)
 Discipline
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May document following staff HR guidelines
Dean’s Office needs to approve termination – notify OAA
Termination vs. failure to give new appointment
If terminate, failure to explain why could present problems if
employee later claims illegal discrimination or retaliation
EMPLOYEE DISCIPLINE – AT WILL EMPLOYEE
 No contract
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Office/clerical/professional/ technical/ administrators – all nonfaculty rank)
 Staff Handbook
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Does not create a contract or state terms of employment
Either employee or UA may terminate relationship at any time,
for any reason, with or without notice (except illegal
discriminatory or retaliatory reason)
Six Month Introductory Period: provides for ongoing feedback
and counseling; supervisor or employee may terminate w/ or
w/out notice; no right to Staff Dispute Resolution Process
Beyond 6 months – Consult with HR Partner
 Employee Counseling & Progressive Discipline Policy
http://hr.ua.edu/hr-policy-manual#2 (# 400)
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Failure to follow progressive discipline steps can provide employee
with proof that discrimination/ retaliation motivated the termination
Staff Dispute Resolution Process http://hr.ua.edu/hr-policy-manual#2 (# 401)
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Applies to non-faculty, regular FT & PT employees, not on contract
Reviews claims of misapplication of UA policy, procedure, or practice
Not applicable to questions re: employment decisions, work
assignments, promotions, pay raises, employee performance
evaluations, disciplinary actions, terminations or other decisions
made in the exercise of legitimate management rights, including
elimination of an employee’s position.
Not for illegal harassment/discrimination
INSURANCE COVERAGE
• Office of Risk Management – Bob Pugh, 8-4534
• Comprehensive General Liability Coverage
• UA will defend and indemnify for judgment as long as employee
is acting within line and scope of employment
• Examples of NOT acting w/in line & scope
– Failure to keep performance evaluation/reprimand confidential
(UAB dept chair paid over 650,000 in damages)
– Consensual Relationship Policy Violation
– Ethics violations
• Promptly notify Office of Counsel of potential claims & cooperate
with us in providing defense
• Health Care Units: Professional Liability Trust
Fund (Linda Mittleman, UAB Risk Management)
• http://www.ua.edu/uact/
• Contact information for reporting
• Harassment/discrimination, sexual misconduct,
domestic and dating violence, retaliation
• Code of Student Conduct violation
• Child abuse or neglect
• Alarming/threatening behavior
• Confidential counseling for sexual violence, etc.
• Criminal Violation
• Compliance and Fraud Hotline
SEXUAL MISCONDUCT
• Sexual Misconduct (Title IX) http://titleix.ua.edu/
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Covered by UA’s Sexual Misconduct Policy
Prohibits offenses such as:
Dating violence
Domestic violence
Stalking
Rape
Statutory rape
Sexual assault
Sexual contact
Sodomy (non-consensual)
Indecent exposure
Fondling
Incest
Sexual exploitation
Sexual harassment, and
Any sexual act that occurs without consent of victim or that occurs when
victim is not in a state that enables them to give consent.
SEXUAL MISCONDUCT
• Reporting Sexual Misconduct
– Responsible Reporting Official (RRO): RROs include employees,
acting in their official University capacities, in the Office of the Title IX
Coordinator, Office of Student Conduct, UAPD, the Designated
Harassment Resource Persons, Resident Advisors and Community
Directors in Housing and Residential Communities, Director of Equal
Opportunity Programs/ University Compliance Officer and Human
Resources Partners for employees only, and non-student University
employees in a senior management role with overall responsibility for
the daily operations of an academic, support or operational unit, such as
Deans, Vice Presidents, Department Chairs, and Directors.
– Designated Reporting Official: A subset of RROs, and includes the
Designated Harassment Resource Persons, Director of Equal
Opportunity Programs/ University Compliance Officer, and employees in
the Office of the Title IX Coordinator, Office of Student Conduct, and
UAPD. Faculty members, graduate teaching or research
assistants, and undergraduate student employees are not
generally considered RROs.
SEXUAL MISCONDUCT
• Dealing with Sexual Misconduct Reports
– If individual is under 18 years of age, contact UAPD (mandatory
report).
– Report to RRO: When an RRO knows or reasonably should
know of an alleged offense, the University is deemed to have
notice of the alleged incident and will take appropriate action,
including measures aimed at ending the inappropriate conduct,
preventing its recurrence, and remediating its effects.
• When a Complainant contacts an RRO, that official shall make a
reasonable effort to advise the Complainant or other reporting party
about (1) the RRO’s duty to inform the Title IX Coordinator about the
incident (e.g., the names of the individuals involved; the time, place,
and location; etc.), (2) the option of the Complainant or other reporting
party to request that the Respondent not be informed of the identity of
the Complainant (but that request may limit the University’s ability to
end the inappropriate conduct, prevent its recurrence, and remediate its
effects), and (3) the fact that the Complainant or other reporting
individual may share the information on a strictly confidential basis with
professional mental health counselors on campus or the Women and
Gender Resource Center, without the Title IX Coordinator being
informed of the individual’s identity.
SEXUAL MISCONDUCT
• Dealing with Sexual Misconduct Reports (cont.)
– Report to other UA employees, students, &
visitors: Employees, students, and visitors, are
encouraged to advise the Complainant of the role of
the Designated Reporting Officials and/or strictly
confidential reporting channels and/or are
encouraged to share information with the Title IX
Coordinator.
– Women & Gender Resource Center
• South Lawn Office Bldg, Suite 2000 (Jackson Ave.)
• 348-5040 / wrc@sa.ua.edu
HARASSMENT
• UA Harassment Policy
(http://eop.ua.edu/harrassment.html)
– Defines inappropriate harassment and includes factors to determine if
harassment exists
– Encourages prompt reporting of inappropriate incidents
– Requires supervisory personnel to educate, sensitize, prevent, and stop
illegal harassment
– Outlines Reporting/Complaint Channels
• Designated Harassment Resource Person
– HR (employees) or UA Compliance Officer in the Office of
Equal Opportunity Programs (students/employees) or Provost
(both)
– Prohibits retaliation against those that report harassment or participate
in an investigation of potential harassment
HARASSMENT
• Examples of inappropriate harassment
─ using epithets, slurs, negative stereotypes
─ threatening, intimidating, or engaging in hostile acts that
relate to a protected characteristic
─ offensive jokes or pranks targeted at members of a
protected group
─ placing on walls, bulletin boards or elsewhere on UA's
premises, or circulating in the workplace by oral, written,
electronic or graphic means any material that belittles,
mocks or shows hostility toward a person or group
because of protected characteristics
• Look at totality of circumstances
– Frequency, severity, circumstances
– Perspective of a reasonable person
BEHAVIORAL THREAT ASSESSMENT
• If individual (student, employee, visitor) appears
to be an imminent threat to self or others, call
UAPD (348-5454) immediately.
• http://threatassessment.ua.edu/
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Behavioral Intervention Team (Students)
Threat Assessment Team
Threat Assessment Specialist (Charlie Dorsey)
How to identify disturbing conduct
How to report (*When in doubt, report)
How reports are handled
EMERGENCY SITUATIONS
• Any information/situation noting an imminent threat to one’s safety or the safety of others
should be considered as an emergency and immediately reported to The University of
Alabama Police Department (UAPD). To contact UAPD, call 911 or (205) 348-5454.
Examples of EMERGENCY SITUATIONS:
• Possession of a weapon (guns, knives, etc.) on UA property
• Possession of a bomb or bomb-making materials on UA property
• Physical assault or attempted physical assault (with or without weapons) on UA
property
• Explicit threats to inflict physical harm to one’s self or others
NON-EMERGENCY SITUATIONS
• Any information/situation involving a threat of violence or alarming and/or disruptive
behavior which is clearly not within the above-detailed “Emergency Situation” category
should be reported as follows:
UA Student – If the behavior involves a current UA student, the information should be
forwarded to the chairperson of the BIT (Dean of Students Office – (http://dos.ua.edu/),
(205) 348-3326)
BIT is headed by Amelia Bomar, Student Care & Well- Being Office, akbomar@sa.ua.edu,
8-0456, Located in 2520 Ferguson Center
UA Faculty - If the behavior involves a current UA faculty member, the information should
be forwarded to the Dean’s Office of the involved College/School and to HR Partners
(http://hr.ua.edu/hr-partners)
UA Staff – If the behavior involves a current UA staff member, the information should be
forwarded to the Vice-President’s Office of the applicable division and to HR Partners
(http://hr.ua.edu/hr-partners)
UA Visitor - If the alarming/threatening behavior involves a visitor to the UA community,
the information should be forwarded to UAPD – (205) 348-5454
FERPA
What is it?
The Family Educational Rights and Privacy Act of 1974, a
federal law meant to give students access to their
educational records while limiting third party access.
What does it cover?
• Students
A student is defined as an individual who is enrolled and “in
attendance.”
• Educational Records- records that:
1. Contain personally identifiable information directly related to
the student; and
2. Are maintained by an educational institution.
PRIMARY STUDENT RIGHTS UNDER
FERPA
• REVIEW their own educational records
Students can make a request in writing to review their records
and must be allowed to do so within 45 days. There are some
limitations to what they can access.
• SEEK TO AMEND their own educational
records
Students can challenge and seek to amend records that they
believe are inaccurate, misleading, or in violation of their rights.
• LIMIT DISCLOSURE of their own
educational records to third parties
Students can generally decide what can and cannot be
disclosed.
GENERAL FERPA DISCLOSURE RULE
• As a general rule of thumb, educational
records of a student should not be
disclosed without signed, dated written
consent from all relevant students. The
consent form must provide basic
information about the disclosure, including
general identification of the records to be
disclosed, the purpose for which they may
be disclosed, and the person to whom
they may be disclosed.
• There is a duty to notify not to re-disclose.
FERPA CONSENT REQUIREMENT
EXCEPTIONS
The relevant regulations set forth multiple exceptions to
FERPA’s general student consent requirement for
disclosure. Most of the exceptions to the general
confidentiality mandate are permissive rather than
mandatory.
Examples of Consent Exceptions:
• Directory Information- Unless a student has opted to
prevent disclosure, a school can release “directory
information” without student consent.
• Other School Officials- Information can be released to
other school officials who have a “legitimate educational
interest” in the information.
FERPA CONSENT REQUIREMENT
EXCEPTIONS
• Parents- Information may be released to parents in
several circumstances, including if the child is listed as a
dependent on the most recent tax form and if there is a
violation of drug and alcohol policies by a child under 21.
• Litigation- A school can release student information in
response to a proper court order or subpoena.
• Health and Safety Emergency- Student records can be
released to appropriate parties in connection with an
emergency to protect health and safety.
• Multiple other exceptions
SOME HELPFUL TIPS
• Student educational records are generally confidential and not
to be released without written consent. Err on the side of
caution.
• When providing records to a fellow faculty member, the basic
principal is “need to know.”
• Faculty have a responsibility to protect records in their
possession; student information should only be kept as long
as it is valid and useful.
• Papers, projects, and graded exams should not be publicly
accessible; if faculty members post grades, they should use a
randomly assigned number or a code.
• Faculty members should keep personal notes relating to
students separate from educational records.
• Faculty members should not discuss student progress with
anyone other than the student without written consent.
• If faculty members have any questions, they should consult
the Registrar’s Office or the Office of Counsel.
UA TRAINING RESOURCES AVAILABLE
• UA’s Policy on Confidentiality of Records
http://registrar.ua.edu/academics/privacy-guidelines/confidentialitystudent-records/
• Tips for Faculty and Staff
http://registrar.ua.edu/academics/privacy-guidelines/ttf-release-eduinfo/
• FERPA 101 PowerPoint Training Presentation for UA
Employees
http://registrar.ua.edu/academics/privacy-guidelines/
OVERVIEW OF THE ADA
• Protects individuals from discrimination on the
basis of his/her disability, perceived disability, or
association with an individual with a disability;
• Requires employers to provide reasonable
accommodations to qualified individuals with a
disability.
• Restricts disability-related inquiries.
WHO IS A PERSON WITH A DISABILITY?
• A physical or mental impairment that
substantially limits a major life activity;
• Very broadly interpreted.
• Includes, but not limited to, standing, lifting, eating, sleeping,
thinking, concentrating, bending, communicating, speaking,
breathing, reading, working, etc.
• A record of such impairment;
• Being regarded as having such an impairment.
REASONABLE ACCOMMODATIONS
• The ADA requires employers to make reasonable
accommodations to qualified individuals with disabilities.
• A reasonable accommodation is any modification or
adjustment to a job, practice, policy, or the work
environment that allows an individual to perform the
essential functions of the job.
• Examples:
– Modified work schedule; acquiring or modifying equipment;
reallocating marginal functions of a job; unpaid leave;
reassignment to a vacant position.
• What is reasonable will vary, and will be considered on a
case by case basis.
• It is the employee’s responsibility to make a request.
− No magic words required.
REASONABLE ACCOMMODATIONS
• Employee should be directed to UA’s ADA
Coordinator to request an accommodation.
– Emily Marbutt (8-7733; emarbutt@fa.ua.edu)
• ADA Coordinator receives confidential medical
information to determine:
– I the employee is a qualified individual with a
disability; and, if so
– What accommodations are both reasonable and
effective in assisting the employee.
JOB PERFORMANCE
• Supervisor may apply the same job performance
standards to employees with disabilities that it
applies to employees without disabilities.
– BUT, must be consistent.
• Tolerating poor performance or lowering
performance standards is not a reasonable
accommodation.
• A reasonable accommodation may be required
to assist an employee in meeting the
performance standard.
EMPLOYEE PRIVACY
• Medical information is not shared with a
supervisor.
• Accommodation information is shared on a
need-to-know basis.
• HR will store all medical information.
• No questions about medical status, medical
history, family medical history, or specifics about
disabilities or medical conditions.
SERVICE ANIMALS
• A service animal is a dog that is individually
trained to do work or perform tasks for the
benefit of an individual with a disability.
• A service animal is allowed in nearly all places
on campus that are open to the public or
students.
• Service animals do not have to be registered or
wear any sort of special identification.
SERVICE ANIMALS
• If it is not obvious what service the animal is
providing, you can ask two questions:
(1) Is the dog a service animal required because of a
disability, and
(2) What work or task has the dog been trained to
perform.
• http://policies.ua.edu/Animal%20Control%20Gui
delines%20and%20Assistance%20Animal%20P
olicy%20(final%20approved).pdf
- UA Policy
• http://www.ada.gov/regs2010/service_animal_qa
.html
- Department of Justice FAQ’s.
OVERVIEW OF FMLA
• Eligible employees with a serious health
condition may take up to 12 work weeks of
FMLA leave within any 12 month rolling period
for a serious medical condition.
• To be eligible, employee must have been
employed by UA for at least 12 months and must
have worked 1,250 hours in the previous 12
months.
– If not eligible under FMLA, need to consider if eligible
under ADA
• Employee can use accrued sick, annual or
compensatory time during their FMLA leave.
Otherwise, leave is generally unpaid.
QUALIFYING LEAVE REASONS
• Eligible employees with a serious health
condition may take up to 12 work weeks of
FMLA leave within any 12 month rolling period
for a serious medical condition.
• To be eligible, employee must have been
employed by UA for at least 12 months and must
have worked 1,250 hours in the previous 12
months.
– If not eligible under FMLA, need to consider if eligible
under ADA
• Employee can use accrued sick, annual or
compensatory time during their FMLA leave.
Otherwise, leave is generally unpaid.
EMPLOYEE LEAVE
• FMLA leave can be continuous or intermittent.
– Leave to bond with a child must be continuous
• For foreseeable leave, the employee should provide
30 days notice, or as soon as practicable.
• For unforeseeable leave, the employee should
provide notice as soon as practicable.
– You can require that the employee follow your normal callin procedures.
• If an employee is on intermittent leave, you cannot
require that he/she bring doctor’s note after each
leave. You do need to ensure that the employee is
submitting his/her FMLA leave record.
REQUESTING FMLA LEAVE
• If employee is absent for three consecutive days
due to a medical condition, notifies you of
hospitalization, or otherwise provides you
information that he/she may have a serious
medical condition, refer them to HR.
– Benefits specialists: Jessica Harrison (8-7099);
Jessica Phillips (8-3150); Hiron Stiell (8-8088), and
Tiffany Bankes (8-6487).
• HR FMLA policy: https://hrestus.fa.ua.edu/HRFormsOnlinePub/HR%20For
ms%20%20Online/FamilyandMedicalLeave.pdf
• HR FMLA forms: http://hr.ua.edu/policies-andforms
PROHIBITED EMPLOYMENT ACTIONS
• Employer cannot:
– Interfere with, restrain or deny employee’s FMLA
rights;
– Discriminate or retaliate against an employee for
having exercised FMLA rights;
– Discharge or in any other way discriminate against an
employee because of involvement in any proceeding
related to FMLA;
– Use the taking of FMLA leave as a negative factor in
employment actions.