Avoiding some risks requires concerted effort by everyone involved: Coordination, role delineation, investigation, and follow-up District and school personnel must provide the information you need Drivers and attendants must act when necessary Transportation administrators must establish and communicate clear rules; drivers and attendants must follow them Transportation administrators must train and enforce; remain knowledgeable and monitor; build bridges based on firm foundations
Is there reason to know harm is likely? Did the school district or the company do anything to increase the harm? Were available options explored?
“Why didn’t the bus driver know any of this?” Were there clues and signals? Is there knowledge of immediate or imminent threat? Was there an interval in which preventive measures could have been taken before the harmful action occurred Did the driver have available options for action?
Issues in dispute Who makes what decisions, and why? Seclusion and restraint Where and how? To “Aide” or not to “Aide” The LRE/ Safety Balance
I.R. is a 12-year old who has a rare condition, rendering him legally blind, and poorly developed, with fragile bones. The district has shared no information with the bus contractor – including the boy’s vulnerability to serious injury. The bus company typically conducts evacuation drills. I.R. is made to participate in a drill, and is severely hurt. Were there opportunities to prevent the harm to the student?
How did it get to this point? What don’t we/ didn’t we know? Why didn’t we know it? How could we avoid getting to this point?
Contractor transports student with impaired motor function. In the past, she has been allowed to walk up the bus stairs with guidance from aide or driver In the course of looking into a complaint about the aide, district’s PT determines the student is not physically able to use the bus steps Mom wants student to ride motorized scooter up the lift, and then be transferred to bus seat Mom has refused district request for OT/PT eval of student, or provision of input from student’s personal PT
Mom has started videotaping loading and unloading of student Student videotapes on the bus What mom really wants is for student to walk up and down bus stairs, and claims failure to permit this is discrimination and retaliation There’s active blog commentary about the situation, and it has been brought to the attention of a local news agency. Mom has threatened to sue everyone.
Services to be provided Who is to provide the services When the services are to be provided The procedures for providing such services, including communication and training for service providers to ensure and obtain clarification of their responsibilities Documentation showing the service providers have received this information (follow-up)
Driver or monitor’s failure to make search a part of every post-trip Staff member’s violation of clear directives endanger a child “Zero tolerance” must have real meaning
A child complains about another child hitting her. The driver forces the child off the bus. A 4-year old is placed on the wrong bus during the first 3 weeks of school. Contrary to policy, a district employee drives her home. A driver offers “customer service,” and drops child off at an undesignated bus stop
A boy realizes he’s on the wrong bus, and notifies the driver. The driver drops him off in front of a bar, and 3 miles from home. A substitute driver drops a student on the wrong side of street. She is killed as a direct result of this action. Careless securement of a child with a disability results in injury to the child.
Inaction where action is needed Doing nothing is never the right thing You’re not expected to be a hero, or even to “fix” the problem Re-inventing the rules Stops Schedules Seating Securement Failing to work with what you’ve got Mis-reading clues and signals
Driver of Iranian origin asserts termination based on national origin discrimination, despite evidence that his performance had become problematic. Driver asserts his former district refused to accommodate kidney condition in violation of ADA – wants shorter route. Part-time driver says district terminated her for too- frequent absences in violation of FMLA’s “return to work” provision. Contractor made reasonable attempts to resolve conflict due to driver’s religious obligations
Will stray remarks come back to haunt you? Was the employee: A member of a minority? Did a “bad thing” happen? Did it happen to others who did the same thing under the same circumstances? Has management failed to take action in the face of considerable intimidation, ridicule and insult directed against the employee? How many incidents, over what period of time, and what has the district or company done or not done about it? Has it impacted employee’s performance?
Protected activity + Timing of adverse employment action – Prior documented issues = Potential for a retaliation claim
Is there a legitimate nondiscriminatory reason for the adverse action? If poor performer, is s/he being treated like other poor performers, without regard to the protected activity? Is there a documented, demonstrated lack of satisfactory performance, or failure to improve after a reasonable remediation plan? How long has it been since the protected activity took place?
If you haven’t disciplined or negatively evaluated an employee before s/he exercises legally protected rights, his or her complaint, grievance, claim or other assertion of rights is not the time to start. If adverse action is necessary, be sure your documentation is in order, and Illustrates the conduct at issue Offers clear evidence as to when the conduct occurred Presents a sound basis for your response Supports consistency of response
Why should you take each step? What does it look like? Exchanging information Establishing and communicating clear rules Instituting interim measures Monitoring progress and results
When By whom Who needs to know? Resolving inconsistencies Drawing conclusions
Communicate – Ensure your staff knows when to inform you before the matter blows up Be responsive – A timely response can help prevent situations from escalating Listen and avoid being defensive – even though it may not be what you want to hear, approach the incident with an open mind. You know we’re not always right! Be honest – If this were happening to your child, how would you feel? If you’re wrong, say so; if you don’t have an answer, say so; if you say you’ll do something, do it. Follow-through – Monitor the situation to ensure the incident does not re-occur
Cross-training for employees Documenting concerns Ensuring necessary coordination is in place Listening with an open mind Hearing the real issue Accountability and consequences