At-Will Employment versus The Luxury of Tenure


Jun 28th, 2013
by Jeanette Doran

this paper.

 

At-Will Employment versus The Luxury of Tenure

North Carolina Institute for Constitutional Law[1]

www.ncicl.org

June 27, 2013

 

            This year, the North Carolina House and Senate both introduced bills aimed at restructuring public school teacher tenure.  House Bill 719; Senate Bill 361.  The House Bill survived the legislature’s self-imposed crossover deadline, which requires legislation to pass in at least one chamber by a certain point in the legislative session, and is now in the Senate Ways and Means Committee.  House Bill 719, http://ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=2013&BillID=h719.  Titled the Education Improvement Act, the bill makes “career status” (tenure) tied to teacher evaluations instead of a school board vote.  House Bill 719, §115C-325 (c)(1).  House bill 719 also provides a way for tenure to be revoked following two consecutive evaluations stating that a teacher is “in need of improvement.” Id. at §115C-325 (1a).  While the bill changes who may or may not become tenured, the bill does not make changes to the procedure for dismissing teachers.  House Bill 719.  To place the bill in perspective, a look at the current teacher tenure laws is necessary.  Additionally, comparing teachers’ job security with employment security of most North Carolinians shows the current state of protection that teachers enjoy compared with the rest of society. Most North Carolinians in the private sector and many in the public sector are employed “at-will” and, unlike tenured teachers, have few legal protections locking their jobs in place.

            North Carolina follows the doctrine of employment at-will.  At-will employment is defined as employment not under contract which may be terminated at any time without cause by the employer or employee.  Black’s Law Dictionary (9th ed. 2009).  An at-will employee may even be terminated for “arbitrary or irrational reasons.”  McCullough v. BB&T, 136 N.C. App. 340, 346 (2000). Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209-10 (1990).  Employment at-will generally means that “an employee without a contract for a fixed term could be hired or fired for any reason or no reason at all.”  Black’s Law Dictionary (9th ed. 2009).  Any employment agreement which generally outlines employment and sets out a rate of payment per hour, week, month, or year, but does not specify a definite end date is not considered a contract.  Freeman v. Hardee’s Food Sys., 3 N.C. App. 435, 437-38 (1969).  Thus, without specifically stating a definite term of employment, an employer-employee relationship is presumed to be at-will.  Kurtzman v. Applied Analytical Indus., 347 N.C. 329, 331 (1997). 

            North Carolina recognizes limited exceptions to the ability of employers to terminate employees at-will.  Id.  Mainly, employers cannot terminate an employee based on race, sex, age, religion, national origin, or disability.  Id.  Under the Retaliatory Employment Discrimination Act (REDA), termination for filing a lawsuit or testifying against one’s employer is generally prohibited.  See N.C.G.S. §96-241.  Additionally, the state recognizes certain public policy exceptions such as not allowing removal for an employee refusing to work below minimum wage.  Amos v. Oakdale Knitting Co., 331 N.C. 348, 353 (1992). 

            Overall, the majority of workers in North Carolina are employed at-will, including many state employees.  Although the State Personnel Act does not allow termination except for “just cause,” N.C.G.S. §125-35, all employees of the Judicial Department and General Assembly, the State Port Authority, the State Lottery, and a list of other agencies and commissions are exempt from that limitation.  Id. §126-5 (c1).  Further, most local government workers are also at-will employees.  Robert Joyce, Employment at Will vs. Right to Work, http://canons.sog.unc.edu/?p=6957.  This means that the majority of employees in the state can be dismissed at any time for almost any reason.

            Teachers, on the other hand, enjoy the luxury of tenure.  Teachers are also exempt from the State Personnel Act, N.C.G.S. § 126-5 (c2)(1), but are shielded from the at-will employment that most North Carolinians face by North Carolina General Statutes §115C-325, which governs the employment of public school teachers. 

            The rules governing teacher dismissal apply to “career employees.”  Id. § 115C-325 (e).  A “career employee” includes both a “probationary teacher” during the term of his or her contract and a teacher with “career status.”  Id. § 115C-325 (a)(1a).  Probationary teachers are teachers who have not yet obtained career status.  Id. § 115C-325 (a)(5).  Teachers with “career status,” commonly known as tenure, are those who have been employed in the public school system for at least four years, and have been approved by the local board of education for career status by a majority vote.  Id. §115C-325 (c)(1).  A vote by the board against granting career status results in the teacher’s dismissal at the end of the school term.  Id.  As a result, the board does not just look at whether the teacher is excelling in the classroom and should be granted tenure, but the board weighs whether they would like to keep that teacher at all.  The statute appears to have an exception to make teachers ineligible for tenure if they fail to perform their responsibilities.  Id. § 115C-325 (c)(3).  However, the only responsibility of a teacher under the statute is to hold a current license from the State Board of Education.  Id. § 115C-325 (a)(6). 

            Career employees (both probationary and career status teachers) may only be dismissed for one or more of fifteen reasons.[2]  § 115C-325 (e)(1).  These reasons include inadequate performance, insubordination, incapacity, conviction of a felony or other crime of “moral turpitude,” and habitual use of alcohol.  Id.  Although “inadequate performance” sounds like a catchall for any problems that do not fit somewhere else on the list, like not being an effective teacher, it is quite difficult to dismiss a teacher for inadequate performance.  What makes it an arduous task is a requirement that the school principal be in the classroom while a teacher is performing poorly. 

The teacher evaluation process provides further insulation to public school teachers.  For instance, the local school board looks at teacher evaluations to determine if they are performing at the expected level.  Id. § 115C-325 (e)(3).  Probationary teachers are evaluated four times per year and career status teachers are evaluated only once per year by the school’s principal.  16 NCAC 06C.0503 (c)(5).  At the end of an evaluation, teachers may add comments to their own review before the determination of whether they performed adequately.  16 NCAC 06C.0503 (c)(7)(D).  Teachers with tenure get the added safety net of avoiding an inadequate review when they are “making adequate progress toward proficiency given the circumstances.”  N.C.G.S. §115C-325 (e)(3). In short, for teachers with tenure, even if they do not meet the standards for a passing review, as long as they are making progress towards having a passing review, then they cannot even be recommended for termination for inadequate performance.  Additionally, if a teacher does receive an inadequate review and is not notified, then that fact is treated by statute as “conclusive evidence of satisfactory performance.”  Id.

            The dismissal process is even longer and more arduous, providing additional layers of job security for public school teachers.  If a career employee meets one of the reasons for dismissal, the local superintendent must start a statutorily prescribed process in order to actually end their employment.  First, the superintendent must provide written notice to the teacher and personally meet with the teacher to provide an explanation of the reason for potential dismissal.  Id. § 115C-325 (h)(2).  The teacher then has fourteen days to request that the charges be reviewed by a hearing officer or a hearing before the board.  § 115C-325 (h)(3).  If the reason for dismissal is for intentional misconduct, then the hearing goes directly to the board, not a hearing officer.  Id. § 115C-325 (f)(2)(a). 

            If the teacher is able to and does request a hearing officer, the Superintendent of Public Instruction sends a list of approved hearing officers to the teacher, and the parties mutually agree upon a hearing officer or, if the teacher and school system cannot agree, each side strikes from the list the names of potential hearing officers and the Superintendent of Public Instruction selects a hearing officer from the names remaining.  Id. § 115C-325 (h)(7).  Hearing officers must be attorneys licensed by the North Carolina State Bar, and special consideration for approval is given to members “endorsed by the largest statewide organizations representing teachers, school administrators, and local boards of education.”  Id. § 115C-325 (h1)(2).  This means approval by the North Carolina Association of Educators (NCAE) and the North Carolina School Board Association (NCSBA) gives those potential hearing officers special consideration for approval. These hearing officers are trained, approved, and compensated by the State Board of Education with public funds. N.C.G.S. § 115C-325 (h)(7) & § 115C-325 (h1)(3). Hearing officers conduct a hearing and prepare a report for the superintendent within ninety days.  Id. § 115C-325 (i1)(1).  The hearing is required to be private, and the teacher has the right to be represented by counsel and present witnesses.  Id. § 115C-325 (j). The facilities for the hearings and a reporter to transcribe the proceedings are provided by the superintendent, and are therefore paid for with public funds.  16 NCAC 06C.0502.  At the conclusion of the hearing, the hearing officer is to make findings of fact and decide whether the recommendation for dismissal is justified, but no conclusions related to the reason given for dismissal.  Id. § 115C-325 (i1)(2).  The officer then prepares a report of these findings for the local superintendent, who is then finally able to decide to submit a recommendation for dismissal to the local board of education.  Id. § 115C-325 (i1)(3).

            If the superintendent decides to recommend a teacher for dismissal to the board, then the teacher may request a hearing before the board.  Id. § 115C-325 (j1).  A hearing before the board is private, and the employee can make arguments against dismissal. Id. § 115C-325 (j2). The career employee can contend “critical factual issues” at the board hearing, even if they previously had a hearing in front of a hearing officer.  Id. § 115C-325 (j1)(2).  Further, if the proposed dismissal is for intentional misconduct, the employee and superintendent both have the right to be represented by counsel and present witnesses.  Id. § 115C-325 (j3)(3).  Finally, after this hearing, the board may make a final determination by resolution deciding to reject the superintendent’s recommendation for dismissal or accept the recommendation for dismissal.  Id. § 115C-325 (j1-j2). 

            Overall, there is a gross disparity in employment protection between the majority of North Carolinians employed at-will and public school teachers.  In addition to the stark contrast in job security, teachers enjoy that security at the expense of taxpayers across the state—many of whom are employed at-will and can be fired without notice and without cause.   As a result, taxpayers end up paying to protect tenured teachers even if they are not adequately performing, but only “making adequate progress toward proficiency” in educating our children.



[1] For more information, please contact Jeanette Doran at 919-838-5313 or doran@ncicl.org. This memorandum was prepared with the assistance of Ashley Berger, law student intern.

[2] Probationary teachers may not be dismissed during a school term except by the procedures for dismissal of a career employee.  N.C.G.S. § 115C-325 (m)(1).  However, the board may decide not to renew their contract for any cause that is not “arbitrary, capricious, discriminatory, or for personal or political reasons.”  Id. § 115C-325 (m)(3).  The superintendent must always provide written notice of nonrenewal and the probationary teacher has the option of requesting a hearing before the board if they would be eligible for career status upon the renewal in question.  Id. § 115C-325 (m)(3-5).