DG(LEGAL) - EMPLOYEE RIGHTS AND PRIVILEGES
Employee Free Speech
District employees do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
However, neither an employee nor anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for unlimited expressive purposes. When a public employee makes statements pursuant to his or her official duties, the employee is not speaking as a citizen for First Amendment purposes, and the Constitution does not insulate the communications from employer discipline.
Garcetti v. Ceballos, 547 U.S. 410 (2006); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) [See also GKD]
A board or its agents shall not suspend or terminate the employment of, or take other adverse personnel action against, an employee who in good faith reports a violation of law by a district or another public employee to an appropriate law enforcement authority.
A "report" is made to an "appropriate law enforcement authority" if the authority is a part of a state or local governmental entity or the federal government that the employee in good faith believes is authorized to:
- Regulate under or enforce the law alleged to be violated in the report; or
- Investigate or prosecute a violation of criminal law.
Gov't Code 554.002
A supervisor who suspends or terminates the employment of or takes an adverse personnel action against an employee for reporting a violation of law shall be subject to civil penalties. Gov't Code 554.008
"Employee" means an employee or appointed officer who is paid to perform services for a district. It does not include independent contractors. Gov't Code 554.001(4)
"Law" means a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. Gov't Code 554.001(1)
A "good faith" belief that a violation of the law occurred means that:
- The employee believed that the conduct reported was a violation of law; and
- The employee's belief was reasonable in light of the employee's training and experience.
Wichita County v. Hart, 917 S.W.2d 779 (Tex. 1996)
A "good faith" belief that a law enforcement authority is an appropriate one means:
- The employee believed the governmental entity was authorized to:
- Regulate under or enforce the law alleged to be violated in the report, or
- Investigate or prosecute a violation of criminal law; and
- The employee's belief was reasonable in light of the employee's training and experience.
Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)
An employee who alleges a violation of whistleblower protection may sue a district for injunctive relief, actual damages, court costs, and attorney's fees, as well as other relief specified in Government Code 554.003. Gov't Code 554.003
Before suing, an employee must initiate action under a district's grievance policy or other applicable policies concerning suspension or termination of employment or adverse personnel action.
The employee must invoke a district's grievance procedure not later than the 90th day after the date on which the alleged suspension, termination, or other adverse employment action occurred or was discovered by the employee through reasonable diligence.
If a board does not render a final decision before the 61st day after grievance procedures are initiated, the employee may elect to:
- Exhaust a district's grievance procedures, in which case the employee must sue not later than the 30th day after the date those procedures are exhausted to obtain relief under Government Code Chapter 554; or
- Terminate district grievance procedures and sue within the time lines established by Government Code 554.005 and 554.006.
Gov't Code 554.005, 554.006 [See DGBA regarding grievance procedures]
Burden of Proof
If the employee brings a lawsuit, the employee has the burden of proof unless the suspension, termination, or adverse personnel action occurred within 90 days after the employee reported a violation of law, in which case the suspension, termination, or adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report.
It is an affirmative defense to a whistleblower suit that the district would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under the whistleblower law.
Gov't Code 554.004
Notice of Rights
A board shall inform its employees of their rights regarding whistleblower protection by posting a sign in a prominent location in the workplace. The design and content of the sign shall be as prescribed by the attorney general. Gov't Code 554.009
Right to Report a Crime
A district employee may report a crime witnessed at the school to any peace officer with authority to investigate the crime. A district may not adopt a policy requiring a school employee to refrain from reporting a crime witnessed at the school or to report a crime witnessed at the school only to certain persons or peace officers. Education Code 37.148
Protection for Reporting Child Abuse
A district may not suspend or terminate the employment of, discriminate against, or take other adverse employment action against a professional employee who in good faith:
- Reports child abuse or neglect to:
- The person's supervisor,
- An administrator of the facility where the person is employed,
- A state regulatory agency, or
- A law enforcement agency; or
- Initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of child abuse or neglect.
"Adverse employment action" means an action that affects an employee 's compensation, promotion, transfer, work assignment, or performance evaluation, or any other employment action that would dissuade a reasonable employee from making or supporting a report of abuse or neglect under Family Code 261.101.
A person may sue for injunctive relief, damages, or both if the person is suspended or terminated from the person's employment; is discriminated against; or suffers any other adverse employment action.
A district employee who has a cause of action under the provisions at Whistleblower Protection, above, may not bring an action under Protection for Reporting Child Abuse.
Family Code 261.110
Protection from Disciplinary Proceedings
For purposes of the following provisions, "disciplinary proceeding" means discharge or suspension of a professional employee, or termination or nonrenewal of a professional employee's term contract. [See DGC regarding immunity] Education Code 22.0512(b)
Reporting Child Abuse or Maltreatment
A district employee may not be subject to any disciplinary proceeding resulting from an action taken in compliance with Education Code 38.0041 [prevention of child abuse and other maltreatment, see FFG]. Education Code 38.0041(g)
Use of Physical Force
A professional employee may not be subject to disciplinary proceedings for the employee's use of physical force against a student to the extent justified under Penal Code 9.62. This provision does not prohibit a district from enforcing a policy relating to corporal punishment or bringing a disciplinary proceeding against a professional employee of the district who violates the district policy relating to corporal punishment. Education Code 22.0512(a); Tex. Att'y Gen. Op. GA-0202 (2004)
Penal Code 9.62 provides that the use of force, other than deadly force, against a person is justified:
- If the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and
- When and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.
Penal Code 9.62
Failure to Follow Scope and Sequence
A district may not penalize a teacher who does not follow a recommended or designated scope and sequence for a subject in the required curriculum under Education Code 28.002(a) in a particular grade level based on the teacher's determination that the teacher's students need more or less time in a specific area to demonstrate proficiency in the essential knowledge and skills for that subject and grade level [see EHAA].
A district may take appropriate action with respect to a teacher for conduct described above based on documented evidence of a deficiency in classroom instruction obtained through observation or substantiated and documented third-party information.
Education Code 28.0027(b), (c)
Instructional Materials and Technological Equipment
A board may not require an employee who acts in good faith to pay for instructional materials or technological equipment that is damaged, stolen, misplaced, or not returned. An employee may not waive this provision by contract or any other means.
A district may enter into a written agreement with an employee whereby the employee assumes financial responsibility for electronic instructional material or technological equipment usage off school property or outside of a school-sponsored event in consideration for the ability of the employee to use the electronic instructional material or technological equipment for personal business.
The written agreement shall be separate from the employee's contract of employment, if applicable, and shall clearly inform the employee of the amount of the financial responsibility and advise the employee to consider obtaining appropriate insurance. An employee may not be required to enter into such an agreement as a condition of employment.
Education Code 31.104(e); 19 TAC 66.107(c)
A district may not discharge, threaten to discharge, intimidate, or coerce any permanent employee because the employee serves as a juror or grand juror, or for the employee's attendance or scheduled attendance in connection with the service, in any court in the United States. An employee who is discharged, threatened with discharge, intimidated, or coerced is entitled to return to the same employment that the employee held when summoned for jury or grand jury service if the employee, as soon as practical after release from jury or grand jury service, gives the employer actual notice that the employee intends to return. Civ. Prac. and Rem. Code 122.001
A district may not discharge, discipline, reduce the salary of, or otherwise penalize or discriminate against a school district employee because of the employee's compliance with a summons to appear as a juror. For each regularly scheduled workday on which a nonsalaried employee serves in any phase of jury service, a school district shall pay the employee the employee's normal daily compensation [see DEC]. Education Code 22.006
Breaks for Nursing Mothers—Nonexempt Employees
A district shall provide a nonexempt employee a reasonable break to express breast milk, each time the employee needs to express breast milk for her nursing child, for one year after the child's birth. The district shall provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
A district is not required to compensate the employee receiving reasonable break time for any work time spent for such purpose.
A district that employs fewer than 50 employees is not subject to these requirements if the requirements would impose an undue hardship by causing the district significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the district.
29 U.S.C. 207(r)
Right to Express Breast Milk
A district employee is entitled to express breast milk at the employee's workplace. Gov't Code 619.002
The district shall develop a written policy on the expression of breast milk by employees under Government Code Chapter 619. The policy must state that the district shall support the practice of expressing breast milk and make reasonable accommodations for the needs of employees who express breast milk.
A district shall provide a reasonable amount of break time for an employee to express breast milk each time the employee has need to express the milk. The district shall provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion from other employees and the public where the employee can express breast milk.
A district may not suspend or terminate the employment of, or otherwise discriminate against, an employee because the employee has asserted the employee's rights under Government Code Chapter 619. Government Code Chapter 619 does not create a private or state cause of action against a district.
Gov't Code Ch. 619
A board or a district employee may not directly or indirectly require or coerce any district employee to:
- Make a contribution to a charitable organization or in response to a fund-raiser; or
- Attend a meeting called for the purpose of soliciting charitable contributions.
A board or district employee may not directly or indirectly require or coerce any district employee to refrain from the same acts.
Education Code 22.011
Protection of Nurses
A district may not suspend, terminate, or otherwise discipline or discriminate against a nurse who refuses to engage in an act or omission relating to patient care that:
- Would constitute grounds for reporting the nurse to the Board of Nurse Examiners under Occupations Code Chapter 301, Subchapter I;
- Constitutes a minor incident, as defined at Occupations Code 301.419; or
- Would violate Occupations Code Chapter 301 or a rule of the Board of Nurse Examiners, if the nurse notifies the district at the time of the refusal that this is the reason for refusing to engage in the act or omission.
Occupations Code 301.352(a)