DC(LEGAL) - EMPLOYMENT PRACTICES
A board shall adopt a policy providing for the employment and duties of district personnel. The policy shall provide that:
- A board employs and evaluates the superintendent;
- A superintendent has sole authority to make recommendations to a board regarding the selection of all personnel, except that the board may delegate final authority for those decisions to the superintendent [see Superintendent Recommendation, below];
- Each principal must approve each teacher or staff appointment to the principal's campus as provided by Education Code 11.202 [see DK and DP];
- Notice will be provided of vacant positions [see Posting of Vacancies, below]; and
- Each employee has the right to present grievances to the board. [See Grievances, below]
Education Code 11.1513
A board shall adopt a policy prohibiting the use of social security numbers as employee identifiers other than for tax purposes [see Social Security Numbers, below]. Education Code 11.1514 [See DBA]
A board shall establish a policy designating specific positions of employment, or categories of positions based on considerations such as length of service, to which continuing contracts or term contracts apply. Education Code 21.002(c) [See DCB and DCC]
Delegation of Authority
A district's employment policy may specify the terms of district employment or delegate to the superintendent the authority to determine the terms of employment with the district. Education Code 11.1513(c) [For nepotism implications, see BBFB and DBE]
If a district employs an internal auditor, the board shall select the internal auditor and the internal auditor shall report directly to the board. Education Code 11.170 [See CFC]
A board may accept or reject a superintendent's recommendation regarding the selection of district personnel and shall include the board's acceptance or rejection in the minutes of the board's open meeting, in the certified agenda or tape recording of a closed meeting, or in the recording required under Government Code 551.125 or 551.127, as applicable. If a board rejects a superintendent's recommendation, the superintendent shall make alternative recommendations until the board accepts a recommendation. Education Code 11.1513(b)
An applicant for a certified or licensed position [see Professional Personnel at DBA(LEGAL)] with a school district, including a district of innovation, must submit, using a form adopted by the Texas Education Agency (TEA), a pre-employment affidavit disclosing whether the applicant has ever been charged with, adjudicated for, or convicted of having an inappropriate relationship with a minor.
An applicant who answers affirmatively concerning an inappropriate relationship with a minor must disclose in the affidavit all relevant facts pertaining to the charge, adjudication, or conviction, including, for a charge, whether the charge was determined to be true or false.
An applicant is not precluded from being employed based on a disclosed charge if the district determines based on the information disclosed in the affidavit that the charge was false.
A determination that an employee failed to disclose required information is grounds for termination of employment.
The State Board for Educator Certification (SBEC) may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant for a position described by Education Code 21.003(a) or (b) despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor.
Education Code 21.009
TEA Internet Portal
TEA shall develop and maintain an internet portal through which required reports may be confidentially and securely filed and TEA makes available:
- The registry of persons who are not eligible to be employed in public schools; and
- Information indicating that a person is under investigation.
Education Code 22.095
Registry of Persons Not Eligible for Employment
TEA shall maintain and make available through its internet portal a registry of persons who are not eligible to be employed by a district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement.
A district, district of innovation, open-enrollment charter school, other charter entity, regional education service center, or shared services arrangement shall discharge or refuse to hire a person listed on the registry.
The registry must list:
- An employee of an open enrollment charter school determined by TEA under Education Code 22.0832 as a person who would not be eligible for educator certification based on their national criminal history record information (NCHRI);
- A noncertified person determined by TEA to be not eligible for employment based on the person's criminal history record information (CHRI), as provided by Education Code 22.0833 [see DBAA];
- A person who is not eligible for employment based on CHRI received by TEA under Education Code 21.058(b) indicating that a certified employee is required to register as a sex offender;
- A person whose certification or permit is revoked by SBEC on a finding that the person engaged in misconduct described by Education Code 21.006(b)(2)(A) or (A-1) [see DHB]; and
- A noncertified person who is determined by the commissioner under Education Code 22.094 to have engaged in misconduct described by Education Code 22.093(c)(1)(A) or (B) [see DHC].
Education Code 22.092
Posting of Vacancies
A district's employment policy must provide that not later than the tenth school day before the date on which a district fills a vacant position for which a certificate or license is required as provided by Education Code 21.003 [see DBA], other than a position that affects the safety and security of students as determined by the board, the district must provide to each current district employee:
- Notice of the position by posting the position on:
- A bulletin board at:
- A place convenient to the public in the district's central administrative office, and
- The central administrative office of each campus during any time the office is open; or
- The district's internet website, if the district has a website; and
- A bulletin board at:
- A reasonable opportunity to apply for the position.
Education Code 11.1513(d)
If, during the school year, a district must fill a vacant position held by a teacher, as defined by Education Code 21.201 [see DCB], in less than ten school days, the district must provide notice of the position in the manner described above as soon as possible after the vacancy occurs. However, a district is not required to provide the notice for ten school days before filling the position or to provide a reasonable opportunity to apply for the position. Education Code 11.1513(e)
A district's employment policy must provide each employee with the right to present grievances to the board. The policy may not restrict the ability of an employee to communicate directly with a member of the board regarding a matter relating to the operation of a district, except that the policy may prohibit ex parte communication relating to:
- A hearing under Education Code Chapter 21, Subchapter E (Term Contracts) or F (Hearing Examiners); and
- Another appeal or hearing in which ex parte communication would be inappropriate pending a final decision by the board.
Education Code 11.1513(i)–(j) [See DGBA]
A district's employment policy may include a provision for providing each current district employee with an opportunity to participate in a process for transferring to another school in or position with the district. Education Code 11.1513(c)(3) [See DK]
A district shall employ each classroom teacher, principal, librarian, nurse, or school counselor under a probationary contract, a continuing contract, or a term contract. A district is not required to employ a person other than these listed employees under a probationary, continuing, or term contract. Education Code 21.002
"Classroom teacher" means an educator who is employed by a district and who, not less than an average of four hours each day, teaches in an academic instructional setting or a career and technology instructional setting. The term does not include a teacher's aide or a full-time administrator. Education Code 5.001(2)
Minimum Length of Contract
A contract between a district and an educator must be for a minimum of ten months of service. An educator employed under a ten-month contract must provide a minimum of 187 days of service. Education Code 21.401(a), (b)
If a district anticipates providing less than 180 days of instruction for students during a school year, as indicated by the district's academic calendar, the district may reduce the number of days of service proportionately. A reduction by the district does not reduce an educator's salary. Education Code 21.401(c-1)
The commissioner of education may reduce the number of days of service if disaster, flood, extreme weather conditions, fuel curtailment, or another calamity causes the closing of schools. A reduction by the commissioner does not reduce an educator's salary. Education Code 21.401(c), 25.081(b)
A board shall establish a plan to encourage the hiring of educational aides who show a willingness to become certified teachers. Education Code 54.363(f)
Employment of Retirees
A district shall file a monthly certified statement of employment of a retiree in the form and manner required by TRS. A district shall inform TRS of changes in status of the district that affect the district's reporting responsibilities.
The certified statement must include information regarding:
- Employees of third party entities if the employees are service or disability retirees who were first employed by the third party entity on or after May 24, 2003, and are performing duties or providing services on behalf of or for the benefit of the district that employees of the district would otherwise perform or provide; and
- Retirees who retired within twelve full, consecutive calendar months of the month of the monthly certified statement and are performing duties or providing services
for or on behalf of the district that employees of the district would otherwise perform or provide, and are:
- Waiving, deferring, or forgoing compensation for the services or duties;
- Performing the duties or providing the services as an independent contractor; or
- Serving as a volunteer without compensation and performing the same duties or providing the same services for a reporting entity that the retiree performed or provided immediately before retiring and the retiree has an agreement to perform those duties or provide those services after the first 12 full, consecutive calendar months after the retiree's effective date of retirement.
A district that fails to attain a completed status for the monthly certified statement as required by 34 Administrative Code 31.2 shall pay to TRS, in addition to the required employer surcharges and any applicable penalty interest on the unpaid amounts, the late fee established in 34 Administrative Code 31.2(d) for each business day that the monthly certified statement fails to attain a completed status.
An administrator of a district who is responsible for filing the statement, and who knowingly fails to file the statement, commits an offense.
Gov't Code 824.6022, 825.403(k); 34 TAC 31.2
Former Board Member Employment
A board member is prohibited from accepting employment with the district until the first anniversary of the date the board member's membership on a board ends. Education Code 11.063 [See BBC]
A district shall ensure that an employee properly completes section 1—''Employee Information and Verification''—on Form I-9 at the time of hire.
A district must verify employment eligibility, pursuant to the Immigration Reform and Control Act, and complete Form I-9 by the following dates:
- Within three business days of initial hiring. If a district hires an individual for employment for a duration of less than three business days, the district must verify employment at the time of hire. A district shall not be deemed to have hired an individual if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times. When a district rehires an individual, the district may, in lieu of completing a new I-9, inspect a previously completed I-9 executed within three years of the date of rehire, to determine whether the individual is still eligible to work.
- For an individual whose employment authorization expires, not later than the date of expiration.
8 C.F.R. 274a.2(b)(1)(ii), (iii), (vii), (viii)
New Hire Reporting
A district shall furnish to the Directory of New Hires (Texas Attorney General's Office) a report that contains the name, address, and social security number of each newly hired employee. The report shall also contain a district's name, address, and employer identification number.
A district may also provide, at its option, the employee's date of hire, date of birth, expected salary or wages, and the district's payroll address for mailing of notice to withhold child support.
A district shall report new hire information on a Form W-4 or an equivalent form, by first class mail, telephonically, electronically, or by magnetic media, as determined by the district and in a format acceptable to the attorney general.
New hire reports are due:
- Not later than 20 calendar days after the date a district hires the employee; or
- In the case of a district transmitting reports magnetically or electronically, by two monthly transmissions (if necessary) not less than 12 days nor more than 16 days apart.
New hire reports shall be considered timely if postmarked by the due date or, if filed electronically, upon receipt by the agency.
A district that knowingly violates the new hire provisions may be liable for a civil penalty, as set forth at Family Code 234.105.
42 U.S.C. 653a(b), (c); Family Code 234.101–.105; 1 TAC 55, Subch. I
Social Security Numbers
A board shall adopt a policy prohibiting the use of the social security number of an employee of the district as an employee identifier other than for tax purposes. Education Code 11.1514 [See DBA]
A district shall not deny to any individual any right, benefit, or privilege provided by law because of the individual's refusal to disclose his or her social security number.
The federal law does not apply to:
- Any disclosure that is required by federal statute. The United States Internal Revenue Code provides that the social security number issued to an individual for purposes of federal income tax laws shall be used as the identifying number for taxpayers;
- Any disclosure to a district maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted before such date to verify the identity of an individual; or
- Any use for the purposes of establishing the identity of individuals affected by any tax, general public assistance, driver's license, or motor vehicle registration law within a district's jurisdiction.
Statement of Uses
A district that requests disclosure of a social security number shall inform that individual whether the disclosure is mandatory or voluntary, by what statutory authority such number is solicited, and what uses will be made of it.
Privacy Act of 1974, Pub. L. No. 93-579, Sec. 7, 88 State 1896, 1897 (1974)
Employment Assistance Prohibited
A district that receives Title I funds shall have regulations or policies that prohibit any individual who is a school employee, contractor, or agent, or a district, from assisting a school employee in obtaining a new job, apart from the routine transmission of administrative and personnel files, if the individual or district knows, or has probable cause to believe, that such school employee engaged in sexual misconduct regarding a minor or student in violation of the law.
This requirement shall not apply if the information giving rise to probable cause has been properly reported to a law enforcement agency with jurisdiction over the alleged misconduct; and has been properly reported to any other authorities as required by federal, state, or local law, including Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) and the implementing regulations under Part 106 of Title 34, Code of Federal Regulations, or any succeeding regulations; and:
- The matter has been officially closed or the prosecutor or police with jurisdiction over the alleged misconduct has investigated the allegations and notified school officials that there is insufficient information to establish probable cause that the school employee engaged in sexual misconduct regarding a minor or student in violation of the law;
- The school employee has been charged with and acquitted or otherwise exonerated of the alleged misconduct; or
- The case or investigation remains open and there have been no charges filed against, or indictment of, the school employee within four years of the date on which the information was reported to a law enforcement agency.
20 U.S.C 7926 [See also CJ]
SBEC may suspend or revoke a certificate, impose other sanctions against the person, or refuse to issue a certificate to the person if:
- The person assists another person in obtaining employment at a school district, private school, or open-enrollment charter school, other than by the routine transmission of administrative and personnel files; and
- The person knew that the other person has previously engaged in sexual misconduct with a minor or student in violation of the law.
The commissioner may require a school district to revoke or decline to issue a school district teaching permit under Education Code 21.055 issued to or requested by a person subject to SBEC action above.
Education Code 21.0581; 19 TAC 249.15(b)(13)