The Worst of All
Worlds: Employee
Termination and
Discipline in
Charter Schools
Barry M. Willoughby, Esq.
William W. Bowser, Esq.
Young Conaway Stargatt &
Taylor, LLP
Legal Considerations:
At Will Issues
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Delaware exceptions
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Contract claims
Implied Covenant of Good Faith & Fair
Dealing
Promissory Estoppel & Fraud
Tort claims
Contract Claims
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Express, written agreements
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Union contracts
Personal employment contracts
Implied agreements
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Employee handbooks
“Course of conduct”
Other employer representations
Implied Covenant of Good
Faith
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Implied agreement in every employment
agreement to act in “good faith”
Four categories
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Public policy
Misrepresentation
Falsifying record or “fictitious reasons”
Misuse of bargaining power
Statutory Claims
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Discrimination claims
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Title VII
State Fair Employment Practices Act
Retaliation claims
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Statutory, e.g., workers compensation
Discrimination laws
Constitutional
“Whistleblower” claims
State Statutes
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Whistleblower law
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Polygraph statute
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Public Employment Relations Act (PERA)
Constitutional Claims
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Due Process
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Equal Protection
First Amendment “Whistleblower”
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Property or liberty interest
Impact of Garcetti – Speech as an
employee not protected
Qualified Immunity Defense for individuals
Avoiding Liability:
Clearly Identify the Reason
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Misconduct
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Performance
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Job elimination or restructuring
Avoiding Liability: Misconduct
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How serious was the offense?
Is it in your handbook?
How have you dealt with the same or
similar offenses in the past?
What discipline of other employees
involved with the offense?
Is there solid proof?
Avoiding Liability:
Performance
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Documentation, documentation,
documentation
Importance of evaluations
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Be specific
Consistent
Consider length of service
Attempts to rehabilitate
Don’t sugar-coat problems
Should You Terminate?
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Don’t rush to judgment
Consider your options
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Transfer
Demotion
Counseling
Progressive discipline
Avoid unemployment compensation
phobia
Avoiding Liability: The
Termination Process
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TELL THE TRUTH!
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TELL THE TRUTH!
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TELL THE TRUTH!
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TELL THE TRUTH!
Avoiding Liability: the
Termination Process
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Follow school’s internal policies
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Review by HR or Board President
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Review by counsel?
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Plan ahead-date, time, security
Avoiding Liability: the
Termination Process
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Communicating the decision
Meet face to face
Witness
Briefly state the real reason
Don’t argue or debate
Firm but sympathetic
Avoiding Liability: the
Termination Process
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Think like a juror
External factors
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Employee’s birthday
Holiday
September 11
Other personal circumstances
To escort or not to escort, that is the
question
Avoiding Liability: Post
Termination Issues
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Limit dissemination of information
Complete internal documentation
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Paperwork, final paychecks, COBRA
notices
References
Confidential and proprietary information
Unemployment compensation claims
Conclusion
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Top Ten
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Tell the truth
Be prepared
Think like a juror
Follow internal rules
Build a “bullet-proof” record
Be consistent
Consider the alternatives
Be kind
Avoid unemployment compensation
phobia
Tell the truth (did I say that already?)