1. T WO T ROUBLESOME E MPLOYMENT C ONCERNS Handling Employee Claims of Harassment and Responding to Employee Criminal Convictions Metro Bureau Tuesday, October 1, 2013 Presenters : Robert T. Schindler / Kevin T. Sutton Lusk & Albertson PLC Want to download this presentation? Do it now: www.luskalbertson.com/metro-bureau

2. D ISTRIBUTION OF T OPICS Handling Employee Claims of Harassment Kevin T. Sutton Responding to Criminal Convictions Robert T. Schindler

3. H ANDLING E MPLOYEE C LAIMS OF H ARASSMENT

4. T OPICS TO BE C OVERED … What is harassment? What are the standards for conduct? When does liability attach? When does duty to investigate arise? What is the purpose of the investigation? What issues require investigation? Who should investigate? How do you prepare for the investigation? What are the issues to consider? What are the mechanics of the investigation? How do you conduct an effective interview? How do you best document investigation? How best to render justice? Any further action to be taken?

5. W HAT IS H ARASSMENT ? Federal and State Laws Title VII/ADEA ELCRA District Policies Protected categories of individuals Race Color Sex ( quid pro quo ; hostile work environment) Religion National Origin Age Evolving areas of harassment Gender identity Transgendered

6. E MPLOYER L IABILITY FOR S UPERVISOR H ARASSMENT Michigan Employer liable if knew of or should have known of harassment and took no prompt remedial action Federal Look to employer’s knowledge, if action taken, and if harassment resulted in “tangible employment action” Vance v. Ball State University, 133 S. Ct. 2434 (2013)

7. A VOIDING L IABILITY Explicit Policy Against Harassment Definition of Harassment Reporting Procedure Confidentiality Assurance Disseminate Acknowledgment of Receipt Post Policy Inform and Train Investigate Claims Develop Positive “Track Record” Be Consistent

8. T HE C OMPLAINT : H YPOTHETICAL Kendall, an elementary school principal, tells the District’s Business Director that she thinks Garrett, a high school principal, has violated the school district’s policy prohibiting sexual harassment. When the Business Director asks for details, Kendall says she does not want to get Garrett in trouble and that she did not want to make a “formal complaint.” The Business Director calls the Director of HR. What should the Director of HR do? 1. Ignore Kendall’s statement because she did not make a formal complaint. 2. Talk to Kendall and see if she wants to make a formal complaint. 3. Investigate.

9. W HEN TO I NVESTIGATE ? A formal (or informal) complaint Co-worker reports of questionable conduct (even if not wanting to become involved or reported anonymously) Observed or reported employee or student misconduct including violation of workplace rules or student code of conduct Parent or student complaints (use caution) Anonymous complaints

10. M OST C OMMON C IRCUMSTANCES B ESIDES D ISCRIMINATION AND H ARASSMENT Bullying Corporal punishment by staff against students prohibited Theft or embezzlement Improper use of e-mail, Facebook, child pornography, etc. Workplace misconduct (jokes, comments, etc.)

11. W HY I NVESTIGATE ? Gather facts and evidence Informed decision-making Adhere to due process requirements for student(s) and staff; adhere to district policy Create a record of activity Occurrence / Response Establish expectations for behavior Show misconduct will be taken seriously Be your attorney’s best friend! Document for future proceedings Avoid liability

12. P REPARING TO I NVESTIGATE Decide if internal or external (consult Legal) Investigate promptly “Act quickly, but not hastily” Review: all applicable policies allegations relevant personnel files Understand what evidence is relevant and necessary (ask Legal) Ensure retention of evidence – documents, electronic records, physical evidence, video surveillance

13. I SSUES TO C ONSIDER B EFORE Y OU S TART Union representation Attorney representation Confidentiality: interference with protected rights as to employees Electronic communications Issues associated with searches

14. C ONDUCTING I NTERVIEWS Prepare open-ended, unbiased questions Take steps to assure that the witness understands the question you are asking and answers the question you are asking Press for answers Order of interviews: Interview complainant and/or victim Interview the accused Interview other witnesses identified by the complainant, accused or other witnesses Re-interview witnesses if necessary Take copious/verbatim notes Consider signed statements

15. T HE R ELUCTANT W ITNESS You have identified Kennedy as a possible witness. She has been disciplined several times by the District and is on an IDP. When you begin to interview Kennedy, she says she will refuse to answer any questions and will not cooperate with the investigation. What do you do? 1. Order her to give you the information and discipline her if she does not cooperate 2. Decide you can’t force her to cooperate

16. T HE R ELUCTANT W ITNESS If witness is uncooperative Concern about how it will look to peers Uncomfortable and afraid of repercussions Desire to be liked Try to determine reason for lack of cooperation Provide reassurance about how to handle actual or perceived retaliation Give names and numbers of who to contact if retaliation is suspected Tell them what you know or think you know Order the employee to cooperate

17. U NCOOPERATIVE A CCUSED Encourage participation by explaining the investigation process, answering any questions the accused has An employee can be compelled to cooperate in an investigation and it is appropriate to discipline employees who refuse to cooperate

18. “I W ANT M Y A TTORNEY ” You bring Jude in for an interview and he requests his attorney. He refuses to discuss anything until his right to counsel is honored. What to do? 1.Let him call his attorney and wait until the attorney arrives 2.Tell Jude that he is not entitled to an attorney and that if he will not answer questions then the investigation will continue without his input

19. “I W ANT M Y A TTORNEY ” - R ESPONSE Two schools of thought OK, call your guy No way, Jude “Would your answers be any different with your attorney here?” Attorney can’t speak Asking for attorney different than asking for union representative If the employee is represented by a union, the employee has Weingarten rights which allow the employee to have his/her “union” representative present while the employee is being questioned on a matter that may result in discipline

20. A N E MPLOYEE ’ S W EINGARTEN R IGHTS “A N EMPLOYEE IS ENTITLED TO HAVE A REPRESENTATIVE PRESENT AT AN INVESTIGATORY INTERVIEW BY AN EMPLOYER IF THE EMPLOYEE REASONABLY BELIEVES THAT DISCIPLINARY ACTION MIGHT RESULT.”

21. W EINGARTEN R IGHTS Do Employees Have to Ask For a Weingarten Rep? Informing Employee of Predetermined Discipline Does the Weingarten Rep Have To Be a Union Steward? What If the Employee’s Chosen Rep is Unavailable? The Role of the Weingarten Rep An Employer Has Three Choices When An Employee Invokes His Weingarten Rights CBA Terms and Weingarten Rights

22. C AUTION W HILE I NTERVIEWING Overbearing investigations and confining or restraining employees or students against their will places the employer at risk for lawsuits False imprisonment Intentional infliction of emotional distress Factors to determine when an interview exceeds permissible limits: The time and conditions under which the questioning took place The content and form of the questions put to the witness The physical and mental condition of the witness during the period during which s/he was questioned Consider breaks, even those to consult with attorney; be reasonable

23. C ONFIDENTIALITY When interviewing, always ask the witnesses to treat the information discussed during the interview as confidential Explain why confidentiality is necessary Explain that the information provided during the interview will be shared on a need-to-know basis and not necessarily held in strict confidence Disclosure by management is sometimes needed for the investigation State any policy prohibiting retaliation (if applicable) Examples

24. W ORKPLACE S EARCHES You believe that Gray, a chemistry teacher, has documents in his desk which are relevant to the allegations that have been made against him by a fellow teacher. You also believe there are e-mails on Gray’s email account which may also be relevant to the allegations. Gray keeps his desk locked and has changed the password on his computer. What should you do? 1. You cannot search because Gray, by locking his desk and changing his password, has created an expectation of privacy 2. You can go to court and obtain an order which lets you search his desk and email 3. The desk and emails are owned by the District and you can search them without Gray’s permission

25. W ORKPLACE S EARCHES ( CONT ) Analyze and evaluate the legitimate reason for the intrusion Review and analyze the nature, scope and intent of the intrusion Take the less intrusive way to effectuate the search (intruding conduct should not exceed the legitimate scope of intrusion) Provide clear and specific notice to employees of District’s policies regarding screening, monitoring, and investigating employee conduct District notice in writing that District will conduct certain types of inspections significantly diminishes the expectation of privacy Obtain employee or student consent in sign offs for policies Obtain consent at the time of the search

26. S EARCHING C OMPUTERS /E LECTRONICS Investigating computer activity is often essential; factors in determining an employee’s expectation of privacy on his/her work computer include: Whether the employer/district maintains a policy banning objectionable use Whether the employer/district actually monitors the use of the employee’s computer activities Whether third parties (such as IT Departments) have the right of access to the student or employee’s computer Whether the employer/district placed the employee or student on notice, or the employee/student was aware of the monitoring policies Employers should obtain consent, either through acknowledgment or notification

27. D OCUMENTATION Use exact words Contact Follow-up as much as needed Create a separate file for the investigation The file should include all documents and other information gathered during the investigation

28. D ETERMINATION Review all of the evidence, including witness interviews If necessary, follow up with additional interviews or other activity needed to conduct an adequate investigation Consider and weigh all the evidence If evidence conflicts, assess credibility Report should document assessment of credibility and what supports your finding

29. D ECISION You find the complaint is true/supported Take appropriate disciplinary action against the accused Tell the complainant to report any retaliation You find that the complaint is false/unsupported If appropriate, take disciplinary actions against the complainant** Warn the accused of the no retaliation rule You can’t decide whether the complaint is true/supported or not Educate the accused and warn against retaliation Tell the complainant to report any retaliation

30. T HE I NVESTIGATION R EPORT Is a written report needed or will a verbal report be sufficient? Will report (whether written or verbal) provide the facts with conclusions or will recommendations be included? If a formal report is needed, the report should include: Background information An explanation of the situation prompting the investigation How the investigation was carried out Witnesses interviewed Documentary evidence reviewed Attach significant documents to report

31. W RITING Y OUR R EPORT Think about your audience when writing your report Edit and proof your report from the perspective of someone with no knowledge of the event Better yet, have someone with no knowledge read and see if it is clear (confidentiality) Decide how you are going to refer to your witnesses and then refer to them in the exact same way throughout the report Will the report be Exhibit A in litigation?

32. D ISCIPLINE Did the District have a rule? Did the District let the employees / students know of the rule? Did the accused violate the rule? Was the investigation fair? How has the District treated other employees who violated this rule in the past? Did the discipline fit the offense?

33. R EMEDIES Determine what, if any, corrective action or remedial measures are necessary Always consider polices and practices If issuing corrective action, remember purpose of such action: Correct future conduct Communicate to employees what is acceptable conduct Minimize exposure to future liability for alleged harassment/discrimination

34. C ONSIDER A DDITIONAL A CTIONS Report to the School Board Report to outside authorities If attorney conducted investigation and prepared report, recommendation can be legal advice and it can be rendered in closed session Witness statements and non-privileged statements may be subject to FOIA Disciplinary hearings and appeals for employees

35. E MPLOYEE R IGHTS IN D ISCIPLINE C ONTEXT Weingarten Rights (previously discussed) Loudermill Rights Also … Rights under Teacher’s Tenure Act Public Employee Relations Act (PERA)

36. L OUDERMILL R IGHTS “The employee is entitled to oral or written notice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story” Employer has an obligation to inform the employee of his/her Loudermill Rights The employee has the right to speak or not to speak at the Loudermill (or “pre-disciplinary”) hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee If the employee chooses not to attend the Loudermill (or “pre-disciplinary”) hearing, the employer may proceed with discipline

37. M ODIFICATIONS TO TTA AND PERA Changes are numerous Transition from “Just & Reasonable Cause” to “Arbitrary & Capricious” Can discipline up to 15 days without TTA implications A discussion for another day …

38. K EY T AKE -A WAYS Have a plan for investigation DOCUMENT!!!!! (even if no investigation) Provide opportunity for employee to respond to allegations/situation Consult with HR Don’t leave situations unresolved

39. C ASE STUDY – “T HAT S HIP H AS S AILED ” 2011-2012 SY Special education teacher, elementary Issues of concern raised by parent (Jan. 2012) Questionable conduct witnessed by other staff (Oct. 2011; Nov. 2011) – man-handling SE child Response Spoke to teacher Never documented issue; no letter in file No investigation; no interviews of witnesses Previously-reluctant parent now on a mission Teacher suspended (March 2012) Investigation requested; “can we fire her?”

40. I NVESTIGATION E NSUES 12 individuals interviewed No explanation why prior issues not documented Excuses Provided: Felt issue was covered by chat with teacher Parent seemed less-than-concerned … initially Wanted to come down on teacher now that parent was upset Teacher countered by insisting this was parent- driven and unfair

41. I NVESTIGATION R ESULTS 222 page report Can we fire her? You decide …

42. C ASE S TUDY L ESSONS Initial incident should have been investigated more thoroughly Interviews should have been done, statements obtained, and (likely) discipline issued Documentation of that incident would have made it easier to penalize teacher for additional bad conduct Discipline for that issue would have made it easier to severely discipline teacher for additional bad conduct Level of parental rage is not the guide! Be thorough all the time!! “That ship has sailed …”

43. Q UESTION T IME

44. A DDITIONAL Q UESTIONS ? Kevin T. Sutton 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5695 Cell: (734) 377-7400 Email: KSutton@LuskAlbertson.com

45. R ESPONDING TO C RIMINAL C ONVICTIONS

46. W HAT W ILL B E C OVERED ? Student Safety Initiative (SSI) What does it require? What does it allow? Interaction Between SSI and the TTA EEOC Enforcement Guidance How may criminal convictions be used in employment decisions under federal law A practical application of the law

47. S TUDENT S AFETY I NITIATIVE MCL 380.1230 et seq. Group of acts that amended or added to the Michigan Revised School Code Effective Jan. 1, 2006 Sought to modernize public school background check process Went from paper to electronic fingerprints Includes check from State Police and the FBI Required all current employees to be re-checked

48. W HO M UST R ECEIVE B ACKGROUND C HECK ? Any individual in any full-time or part-time employment – Upon offer of initial employment Any individual being assigned to regularly and continuously work under contract in any of its schools – As soon as school is aware Volunteers? Substitutes – May rely on the check possessed by another employing entity

49. R EGULARLY AND C ONTINUOUSLY To work at school on a more than intermittent or sporadic basis. Intermittent: stopping or ceasing for a time; alternately ceasing and beginning again Sporadic: appearing or happening at irregular intervals in time

50. W HAT IF C RIMINAL H ISTORY ? If the report discloses that an individual has been convicted of a listed offense, then the school district … shall take steps to verify that information using public records and, if the information is verified, shall not employ the individual in any capacity... and shall not allow the individual to regularly and continuously work under contract in any of its schools. MCL 380.1230(9) and 380.1230a(10).

51. L ISTED O FFENSE “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722. Accosting, enticing, or soliciting a child for immoral purposes; Involvement in child sexually abusive activity or material; Sodomy, if a victim is under 18; A third or subsequent offense of engaging in indecent or obscene conduct in a public place or indecent exposure; Except for a juvenile disposition or adjudication, gross indecency, if a victim is under 18; Kidnapping, if a victim is under 18;

52. L ISTED O FFENSE (C ONT.) Soliciting, accosting, or inviting another person to commit prostitution or an immoral act, if a victim is under 18; Pandering for purposes of prostitution ; First-, second-, third-, or fourth-degree CSC or assault with intent to commit CSC; Any other violation of a State or local law that, by its nature, constitutes a sexual offense against an individual under 18; An offense committed by a person who was, at the time of the offense, a “sexually delinquent person” as defined in the Michigan Penal Code; An attempt or conspiracy to commit an offense listed above; An offense substantially similar to an offense listed above, under a law of the United States, any state, or any country, or under tribal or military law

53. W HAT IF C RIMINAL H ISTORY ? If the report received... discloses that an individual has been convicted of a felony other than a listed offense, then the school district … shall take steps to verify that information using public records and, if the information is verified using public records, shall not employ the individual in any capacity or allow the individual to regularly and continuously work under contract in any of its schools unless the superintendent or chief administrator and the governing board or governing body, if any, of the school district, intermediate school district, public school academy, or nonpublic school each specifically approves the employment or work assignment in writing.

54. H ERE ’ S W HERE I T G ETS T RICKY April 25, 2012, the EEOC issued Enforcement Guidance relative to “the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” Title VII is a federal law prohibits discrimination on the basis of race, color, religion, sex, or national origin The EEOC explained that blanket prohibitions against the hiring of those with convictions have a disparate impact on racial minorities Must show policy or decision has legitimate business necessity

55. L EGITIMATE B USINESS N ECESSITY EEOC encourages usage of the “Green Factors” ( Green v. Missouri Pacific RR, 549 F.2d 1158 (8th Cir. 1977)): The nature and gravity of the offense or conduct; The time that has passed since the offense or conduct and/or completion of the sentence; and The nature of the job held or sought.

56. A PPLICATION OF THE G REEN F ACTORS Will rarely lead to the upholding of a blanket prohibition regarding criminal convictions May not use the mere charge of a crime as reason to discharge or not hire Unless legitimate business necessity exists for the blanket prohibition, must consider each conviction separately

57. H OW A BOUT C URRENT E MPLOYEES ? SSI – Section 1230c If a school district receives notice from an authoritative source that an employee or contracted individual has been convicted of a listed offense: District must verify using public records; If verified, shall not employ or allow to work under contract.

58. H OW A BOUT C URRENT E MPLOYEES ? SSI – Section 1230d If employee/contractor is charged with a crime listed in sections 1535a(1) or 1539b(1) they must, within 3 business days of arraignment, notify MDE and the superintendent of employing/contracting district. If employee/contractor is convicted of any crime after being charged with a crime listed in sections 1535a(1) or 1539b(1) they must, immediately, notify superintendent of public instruction and the superintendent of employing/contracting district.

59. H OW A BOUT C URRENT E MPLOYEES ? SSI – Section 1230d (cont.) Failure to provide notification is itself a crime – and a crime to the same level (i.e., misdemeanor or felony) as the crime the individual has failed to report. “A person that fails to report may be discharged from his or her employment or have his or her contract terminated.” MCL 380.1230d(4) Discharge not subject to TTA – MCL 38.101a

60. C RIMES L ISTED IN 1535 A (1) AND 1539 B (1) Any Felony; Fourth-degree criminal sexual conduct (CSC) or an attempt to commit that offense; Third- or fourth-degree child abuse or an attempt to commit that offense; A misdemeanor involving cruelty, torture, or indecent exposure involving a child; A misdemeanor violation of Section 7410 of the Public Health Code (which prohibits the delivery of a Schedule 1 or 2 controlled substance that is a narcotic or cocaine, by a person who is 18 or older to a person who is under 18 and at least three years younger than the offender, or delivery on or within 1,000 feet of school property); Breaking and entering; Allowing a minor to possess or consume alcohol at a social gathering on premises under the offender’s control; Indecent exposure; Larceny from a vacant building; Selling or furnishing alcohol to a minor; and Any misdemeanor that is a Listed Offense.

61. H OW A BOUT C URRENT E MPLOYEES ? SSI – Section 1230d (cont.) Subsection (7) (along with 1535a(15) and 1539b(15)) calls for the MDE, in conjunction with the Dept of Information Tech and the Dept of State Police to develop and implement a program that does a biannual comparison and report of the list of individuals employed by or working in schools with the conviction information received by the state police.

62. H OW A BOUT C URRENT E MPLOYEES ? SSI – Section 1230d (cont.) If a school district receives a report that discloses a criminal conviction, the rules of 1230(9) and 1230a(10) apply: i.e., if listed offense – shall not employ; if felony other than listed offense – shall not employ unless If conviction is a non-listed felony offense, should consider Green factors

63. L EGISLATIVE C ONCERNS 1230d(7) report is only required by statute until July 1, 2008. What if I learn of a felony conviction from an authoritative source other than the reports previously discussed? ????? Statute is silent on this issue – i.e., may take action, but none is required

64. H OW A BOUT C URRENT E MPLOYEES ? Sections 1535a and 1539b Sections are the exact same except 1535a relates to those holding a teaching certificate and 1539b relates to those that hold state board approval 1535a(1) and 1539b(1) If an individual is convicted of crime listed (see slide above) they must be notified that their certification/approval may be suspended pending a hearing.

65. H OW A BOUT C URRENT E MPLOYEES ? 1535a(2) and 1539b(2) If an individual is convicted of crime listed in that section, “the superintendent of public instruction shall find that the public health, safety, or welfare requires emergency action and shall order summary suspension of the person's teaching certificate... and shall subsequently provide an opportunity for a hearing.”

66. C RIMES L ISTED IN 1535 A (2) AND 1539 B (2) Criminal sexual conduct in any degree, assault with intent to commit CSC, or an attempt to commit CSC in any degree; Felonious assault on a child, first-degree child abuse, or an attempt to commit first-degree child abuse. Cruelty, torture, or indecent exposure involving a child; Manufacture, delivery, or possession with intent to manufacture or deliver, of at least 1,000 grams of a Schedule 1 or 2 controlled substance that is narcotic or cocaine; Intentional or knowing possession of a Schedule 1 or 2 narcotic or cocaine; Delivery of a Schedule 1 or 2 narcotic or cocaine to a minor; A violation of Section 7410 of the Public Health Code (described above); Recruiting, inducing, or coercing a minor to commit a controlled substance felony; Assault with intent to commit murder; Armed assault with intent to steal; Attempted murder; Accosting, soliciting, or enticing a child for immoral purposes; First- or second-degree murder; and Armed robbery.

67. H OW A BOUT C URRENT E MPLOYEES ? 1535a(4) and 1539b(4) If a person convicted of a crime listed in subsection (2) has been suspended from active duty the school district shall discontinue the person’s compensation pending the hearing If the superintendent of public instruction does not suspend or revoke the person’s certificate or state board approval, the individual shall be made whole by the school district without interest

68. I NTERACTION WITH THE TTA The Teachers’ Tenure Act contains certain exceptions also related to criminal convictions Article IV, section 1a of the TTA (MCL 38.101a) states: Rights of a teacher under the TTA are subject to: 1230d(4) – discharge for failing to disclose conviction; 1535a(4) – suspension of pay for conviction of sub (2) crime; and 1535a(5) – make whole provision if certificate not revoked or suspended.

69. I NTERACTION WITH THE TTA Article IV, section 1a of the TTA (cont.) Conviction of a violation of one of the crimes listed in 1535a(1) “is considered to be reasonably and adversely related to the ability of the person to serve in an elementary or secondary school and is sufficient grounds to support the discharge or demotion of a teacher on continuing tenure.” Such conviction, however, is still subject to the procedures of the TTA.

70. I NTERACTION WITH THE TTA Article IV, section 3 of the TTA (MCL 38.103) states: If “criminal charges have been filed against a teacher” the controlling board may place their salary into an escrow after tenure charges have been filed and the teacher is suspended from active duty Health or life insurance benefits may be suspended

71. I NTERACTION WITH THE TTA Article IV, section 3 of the TTA (cont.) If a teacher suspended from active duty after the filing of tenure charges is convicted of a felony that is not a listed offense or a misdemeanor that is a listed offense “the controlling board shall discontinue the teacher's salary effective upon the date of conviction” This would supplement the suspension of salary under 1535a(4) – i.e. for the conviction of a crime listed under 1535a(2) or 1539b(2).

72. P RACTICAL A PPLICATIONS Upon Hiring or Contracting Must have employee or individual to work in school building submit to criminal history and background check; If conviction of a listed offense, shall not employ If conviction of a felony other than a listed offense, shall not employ unless Apply Green factors in determining the unless

73. P RACTICAL A PPLICATIONS Current Employee or Individual Working in School Building If the school district learns from any authoritative source that the individual has been convicted of a listed offense, school district shall not employ Procedural protections of the TTA still apply - i.e., must file tenure charges

74. P RACTICAL A PPLICATIONS Current Employee or Individual Working in School Building If the school district learns from the biannual MDE report that the individual has been convicted of A listed offense, school district shall not employ A felony other than a listed offense, school district shall not employ unless Green factors apply Procedural protections of the TTA still apply - i.e., must file tenure charges

75. P RACTICAL A PPLICATIONS Current Employee or Individual Working in School Building If the school district learns from any authoritative source that the individual has been convicted of a felony that is not a listed offense, the school district is not compelled to any action (at least until a report is received) Apply Green factors Should the district choose discharge, procedural protections of the TTA still apply - i.e., must file tenure charges

76. P RACTICAL A PPLICATIONS Current Employee or Individual Working in School Building If the employee fails to timely report a charge of a crime listed in 1535a(1) or conviction of any crime after being charged with a crime in 1535a(1), the individual may be discharged Procedural protections of the TTA do not apply School district must provide notice and an opportunity for a hearing with the school district

77. P RACTICAL A PPLICATIONS Stopping Employee Pay If charged with any crime, may suspend payment to employee and pay into escrow account upon the filing of tenure charges; If convicted of a felony that is not a listed offense or a misdemeanor that is a listed offense the school district may suspend payment (without escrow) upon filing of tenure charges; If convicted of crime listed in 1535a(2) or 1539b(2), the school district shall suspend payment (without escrow) pending certification proceedings.

78. P RACTICAL A PPLICATIONS The procedural protections of the TTA and requirement to continue pay do not apply when an individual is not certificated – i.e., certificate is revoked Requirement to continue pay under the TTA does not apply if the teacher is not willing and able to teach – i.e., in jail or has bond restrictions that do not allow them to teach

79. A PPLICATION OF G REEN F ACTORS – S CENARIO 1 Applicant/Employee has conviction for misdemeanor embezzlement (less than $2,000) from 15 years prior. Individual is applying for position as bookkeeper in business department? Individual is applying for position as janitor? What if 5 years prior? What if a felony (More than $2,000 but not more than $10,000)?

80. A PPLICATION OF G REEN F ACTORS – S CENARIO 2 Applicant/Employee has conviction for felony possession of narcotics (less than 25 grams) from 20 years ago while in college. Individual is applying for position as a teacher? Individual is applying for position as school secretary? What if 5 years ago?

81. A PPLICATION OF G REEN F ACTORS – S CENARIO 3 School district receives report from MDE that current teacher has been recently convicted of operating a vehicle while under the influence of liquor (3 rd offense) – a felony Conviction occurred in June – i.e., teacher missed minimal if any time from work Teacher is certified K-6 and currently teaches 2 nd grade

82. A DDITIONAL Q UESTIONS ? Robert T. Schindler 40950 Woodward, Suite 350 Bloomfield Hills, MI 48304-5129 Direct: (248) 988-5696 Cell: (248) 431-5401 Email: RSchindler@LuskAlbertson.com