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Special Legal Notice
Legal Issues
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Protecting Yourself In The Workplace
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As a school employee, the job of
teaching can be a difficult one.
Teachers deal with hundreds of
students and their parents as well
as the school administration and
colleagues on a daily basis.
Although unfortunate, the very
nature of the job leaves teachers
open to serious allegations of
misconduct, ranging from
inappropriate discipline to
excessive use of force to sexual
misconduct to misappropriation of
funds to falsifying records.
While it is impossible to stop
allegations from being made, steps
can be taken to protect teachers,
their reputations and careers. It
is important to note that teachers
are not the only employees in a
school district who are open to
allegations of misconduct. Bus
drivers, teacher assistants, food
service workers, custodians,
secretaries and other educational
support personnel are also
vulnerable to charges. By following
these simple tips, teachers can help
protect themselves from becoming the
victims of allegations.
What practices and activities are
covered by the employment
nondiscrimination requirements?
Who is protected from employment
discrimination?
What is “reasonable” accommodation?
Are you in need of assistance in
requesting a reasonable accommodation?
*Americans With Disabilities Act*
What practices and activities are
covered by the employment
nondiscrimination requirements?
The ADA prohibits discrimination in
all employment practices, including
job application procedures, hiring,
firing, advancement, compensation,
training and other terms, conditions
and privileges of employment. It
applies to recruitment, advertising,
tenure, layoff, leave, fringe
benefits and all other
employment-related activities.
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Employment discrimination is
prohibited against “qualified
individuals with disabilities.” An
individual is considered to have a
“disability” if she/he has a
physical or mental impairment that
substantially limits one or more
major life activities, has a record
of such impairment, or is regarded
as
having such an impairment.
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Who is a “qualified person with a
disability?”
A qualified person with a disability
is a person who meets legitimate
skill, experience, education or
other requirements of an employment
position that she/he holds or seeks,
and who can perform the
essential functions of the position
with or without reasonable
accommodation.
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Reasonable accommodation is any
modification or adjustment to a job
or to the work environment that will
enable a qualified applicant or
employee with a disability to
participate in the application
process or to perform the essential
functions of the job.
Reasonable accommodation also
includes adjustments to assure that
a qualified individual with a
disability has rights and privileges
in employment equal to those of
employees without disabilities.
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A reasonable accommodation for an
individual employee should be
considered on a case by case basis.
Depending on the nature of the
disability, it is helpful to have
the employee, employee’s doctor,
therapist or other healthcare
specialist, who is familiar with the
employee, participate in the
discussion. There are also many
public and private sources that can
be of assistance. There is no
cookie-cutter approach, and often
the employee knows exactly what is
needed in the way of an
accommodation.
Reasonable accommodation includes:
making existing facilities
accessible and
useable, restructuring a job,
modifying work schedules, making
adjustments in leave policies,
acquiring or modifying equipment,
providing qualified readers or
interpreters, or modifying
examinations, training or other
programs.
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If you are a qualified individual
with a disability or believe you are
a qualified individual with a
disability and are in need of
assistance in requesting a
reasonable accommodation from your
employer, call your Union office for
assistance. Sometimes it is helpful
to make the request of your employer
through the Union. If you have been
denied a reasonable accommodation to
which you believe you are entitled,
you should contact the Union office
immediately for help.
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Assaulted? Know Your Rights
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It’s important for teachers to know
what to do if they are victims of an
assault (the threat of violence) or
battery (the actual violent action).
Both crimes are traumatic, and the
natural reaction of the victim,
especially a school employee, is to
minimize the event. However, days
or weeks later, the victim will
realize physical or emotional injury
caused by the crime. Therefore, it
is important to report any assault
or battery as
soon as possible so that your rights
will be protected.
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Fill out the appropriate reporting
forms at your school. You should
always fill out the necessary forms
even if you think your injury is not
serious or was just an accident.
Keep the description brief and
factual. If students are involved,
also fill out a discipline referral
form. Remember to keep copies of all
forms for your own files.
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Typically, you will not have time to
fill out the forms until later in
the day or after school. Therefore,
you should promptly report the
incident to your principal. Do not
wait more than a few days before
having any workers’ compensation or
social security disability
application completed and filed.
See a Doctor
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You should be examined by a doctor
in case your injuries require
medical attention. Some injuries are
not apparent until later, for
example, strained muscles or twisted
backs. Check with your
principal/supervisor for the list of
panel doctors. You should not seek
medical treatment without the
approval of your employer or their
insurance company, unless it is an
emergency.
If you are not satisfied with the
doctor, ask your employer or their
insurance carrier to select a
different one. Be sure to tell the
doctor that you were injured on the
job so that any medical expenses
will be covered by workers’
compensation. Workers’ compensation
will also reimburse you for those
days you are out of work. If you
stay out of work because of
disability resulting from a
school-related battery, those days
are not deducted from your sick
days.
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You may also wish to contact the
police and have them file a police
report. You may decide to press
charges after this is done. You do
not need your principal’s permission
to do this.
Florida
Law
784.081 Assault or battery on
specified officials or employees;
reclassification of offenses.—
Whenever a person is charged with
committing an assault or aggravated
assault or a battery or aggravated
battery upon any elected official or
employee of a school district; when
the person committing the offense
knows or has reason to know the
identity or position or employment
of the victim, the offense for which
the person is charged shall be
reclassified as follows:
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In the case of aggravated battery,
from a felony of the second degree
to a felony of the first degree.
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In the case of aggravated assault,
from a felony of the third degree to
a felony of the second degree.
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In the case of battery, from a
misdemeanor of the first degree to a
felony of the third degree.
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In the case of assault, from a
misdemeanor of the
second degree to a misdemeanor of
the first
degree.
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Simple Career Savers
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Never touch a child in anger. Avoid
any contact that can be perceived as
grabbing, pushing, shoving,
pinching, twisting or hitting.
Avoid being alone with a student,
particularly one of the opposite
sex. Have another student or adult
present at all times. If this is
not possible, be sure to leave the
door open.
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Reputation in the Community
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Keep your co-workers and supervisors
informed.
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Communicate with parents and
document your communication.
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Dress and act appropriately and
professionally.
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Use common sense and judgment.
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Avoid putting yourself in a position
where you have to defend, justify your behavior or
actions.
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Maintain a professional reputation
in the community.
What
Are Self-Reporting
Requirements?
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The Code of Ethics for the Education
Profession requires employees who
hold a valid Florida Teaching
Certificate to self-report certain
arrests or charges.
Within 48 hours the following must
be
reported:
Within 48 hours of a final
disposition, with the exception of a
minor traffic violation, the
following must be reported:
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A conviction for any criminal
offense
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A finding of guilty for any criminal
offense
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A withholding of adjudication for a
criminal offense
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A commitment to a pre-trial
diversion program for any criminal
offense
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The entering of a plea of guilty or
nolo contender for any criminal
offense
Will self-reporting affect my
employment?
The Code of Ethics clearly states
that giving notice to your employer
is not an admission of guilt, nor
shall the notice be admissible for
any purpose in any proceeding —
civil or criminal, administrative or
judicial, investigatory or
adjudicatory.
However, depending on the nature of
the pending allegations, an employer
may choose to take action on its
own. The District may choose to
engage in an investigation or place
you on suspension with or without
pay or place you in an alternative
position until there is a finding
through the legal system or the
charges are dropped. The District
may also make a report to the
Professional Practices Service
(PPS).
The PPS is the State Department of
Education’s investigatory arm that
investigates allegations of
misconduct against teachers. If a
report is made to PPS, you can
expect a thorough investigation.
If the District puts you on notice
that it intends to take action, you
should contact your Union office
immediately so that you can be
provided representation.
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Charges That Trigger Investigations
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While not meant to be exhaustive,
some charges that will trigger an
investigation
by the District or PPS
include the following:
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Child abuse
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Sale
or possession of a controlled
substance
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DUI or DWI
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Domestic violence
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Fraud
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Worthless checks
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Assault
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Battery
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Petit or grand theft
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Insurance fraud
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Sexual battery
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Solicitation for prostitution
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Trespassing
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Forgery
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Lewd and lascivious acts or assaults
FLORIDA
PROFESSIONAL PRACTICES SERVICES
The Professional Practices Services
(PPS), is the investigatory branch
of the Department of Education. The
PPS investigates school employees
(both teachers and administrators,
who hold teaching certificates) when
there are allegations of misconduct
and/or violations of the Code of
Ethics. Based on the results of the
investigation, the PPS makes a
recommendation to the Commissioner
of Education. The recommendation can
be for a finding of Probable Cause
or No Probable Cause.
How does the PPS receive complaints
about certificate holders?
A complaint regarding allegations of
misconduct is most often sent to PPS
by the School District. It is also
possible for a parent, student,
colleague or any citizen to report
allegations of misconduct to the
PPS.
When a School District makes the
report, there has more often than
not, been an investigation into the
allegations at the District level.
In this case, the District would
send any reports and evidence it
gathered to be considered by the
PPS.
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Why would the District have PPS
investigate a second time?
The District and the PPS operate
independently of each other. In
fact, it is possible for the
District to investigate and
discipline the employee and for PPS
to conduct an investigation which
results in no disciplinary action.
It is also possible for the District
to take no action and for the PPS to
mete out a penalty. It is important
to note that the District
disciplines the employee while PPS
disciplines or takes action against
the certificate.
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How does an investigation by PPS
work?
When an allegation is made against a
certificate holder, the PPS will
notify the individual by letter. The
letter will describe the nature of
the allegation and inform the
certificate holder that an
investigation will occur. Should you
receive a letter like this,
immediately call the Union office.
The PPS will send an investigator to
interview possible witnesses in an
effort to substantiate the
allegations. If the certificate
holder is contacted, no statement
should be made at this time.
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What happens after the
Investigation?
The certificate holder is again
notified by letter and is invited to
participate in an Informal
Conference. The purpose of the
conference is to provide information
and documents to either dispute the
allegations or to explain the
situation. The staff of the Broward
Teachers Union provides
representation to its members for
the Informal Conference.
While the investigation is under
way, everything is confidential.
Once the investigation is complete,
however, all documents, written
statements, notes, etc. become
public record and are available to
anyone who requests them.
Following the Informal Conference,
the investigation will make a
recommendation to the Commissioner
of Education. No Probable Cause
means that there is a recommendation
to take no action against the
certificate. Should the Commissioner
agree and find No Probable Cause,
the certificate holder will receive
a letter to that effect and the
Commissioner will dismiss the
complaint.
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Probable Cause versus No Probable
Cause
When there is a recommendation for a
finding of Probable Cause and the
Commissioner accepts that
recommendation, an administrative
complaint is prepared. The
complaint, which is sent to the
certificate holder, sets forth the
rules and laws which are alleged to
have been violated, as well as a
statement of the material
allegations.
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Election of Rights
When the certificate holder is
notified that there is finding of
Probable Cause, an Election of
Rights form is sent with the
Administrative Complaint This form
gives the certificate holder several
options: a formal hearing before the
Education Practices Commission or a
settlement Option. A member of the
BTU should seek legal assistance
from the staff of the Broward
Teachers union prior to making a
selection.
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What Types of allegations are
considered?
Sexual Misconduct
Without Students: Sexual harassment
of colleagues, sexual activities in
public.
Sexual Misconduct with Student:
Inappropriate comments of a sexual
nature, romantic involvement,
kissing or inappropriate touching or
hugging, or sexual contact with
student.
Drug-Related
Offenses: Drinking with or providing
alcohol to students, DUI and DWI
offenses, appearing at work while
under the influence of alcohol or
drugs, possession or sale of
controlled substances, forging
prescriptions for addictive
substances, convictions or withheld
adjudications for offenses involving
alcohol or controlled substances.
Inappropriate Discipline:
Misuse of corporal punishment,
excessive force, taping students’
mouths, tying students to chairs,
inappropriate use of timeout.
Incompetency:
Due to either inefficiency or
incapacity, the educator has failed
to demonstrate minimal standards of
competent performance.
Criminal Conduct, Non-Drug Related:
Convictions or withheld
adjudications for such offenses as
worthless checks, assault, battery,
trespass, petit or grand theft,
murder, forgery, insurance fraud,
sexual battery, lewd and lascivious
acts or assault, solicitation for
prostitution, sale of child
pornography.
Fraudulent Certificates:
Failure to acknowledge criminal
records on applications for
certification, submission of
fraudulent scores for certificate
exams, altering the validity period
or other information on a photocopy
of the certificate, submission of
false transcripts.
Miscellaneous
Issues: Profanity, racial slurs, or
derogatory comments to students,
false and malicious comments about
colleagues, showing “R” rated movies
or other non-approved films to
students, diversion of school funds,
failure to follow procedures for the
collection of students fees, use of
invalid standardized testing
procedures, altering students
records, falsification of Full -
Time Equivalent records, violation
of
Education Practices probation.
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The Fair Use Doctrine & Copyright
Regulation
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A
copyright grants creators exclusive
rights to their work for a limited
time, so that they can profit from
it and control its use. These
rights are balanced by “the fair use
doctrine”, which permits certain
exceptions, including works to be
used for nonprofit, educational
purposes without permission or fees.
If I am using materials for
teaching, am I covered by “fair
use”?
The answer is “Not always.”
There are four factors that
determine what is fair.
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The purpose and character of the
use (teaching generally passes)
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The nature of the copyrighted
work (fiction enjoys stronger
protection than non-fiction).
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The amount used (copying an
entire work-never a good idea)
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The effect of the use on the
work’s potential market value
(if you are taking money out of
the creator’s pocket, it is
probably not fair use – an
example would be duplicating
pages of a workbook so students
or the school can avoid
purchasing it)
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What
About The Internet?
The
Internet has made accessibility to
music, articles, film clips and
graphics more accessible than ever
before. Just because there is no
copyright notice or symbol on a Web
site doesn’t mean that the work
isn’t copyrighted.
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Is
There Any Way To Get Permission To
Duplicate
Copyrighted Materials?
It
never hurts to ask for permission to
duplicate a copyrighted work. The
author may just say “yes” or may
give a qualified “yes” which may
include the payment of a fee or
royalty or some limitations. It is
best to be very specific when
seeking permission from the holder
of the copyright, or in some cases,
the editor or publisher. Just
remember that the answer may be a
denial of permission and that “no”
really means “no”.
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Are There Copyright Police?
While
you don’t have to lose sleep
worrying about the copyright police,
fines can be attached to the
infringement on copyrights. The
fines can run from $500 to $20,000
per infringement and, if it can be
proven that the law has been broken
by willful intent, the fine can be
raised to $100,000. It should be
noted that, while few educators have
been sued successfully for
copyrighting violations, there are
several good reasons to obey the
law. Those who have created the
work we seek to copy, be it a book,
a poem, a picture, an article in a
magazine or newspaper, a movie or
even a piece of music probably did
so with the intent of making money.
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You
may duplicate single copies of the
following items:
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A chapter of a book
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An article from a newspaper or
periodical
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A short story
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A short essay
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A short poem
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A chart, graph, diagram or
picture from a book, periodical
or newspaper
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A cartoon that is not
copyrighted and syndicated
You
may duplicate multiple copies for
classroom use of the following
items:
One chart, graph, diagram or
picture per book or periodical
issue
One cartoon that is not
copyrighted and syndicated from
a book or periodical issue
A complete poem of less than 250
words, if it is not printed on
more than two pages
An excerpt from a long poem that
does not exceed 250 words
An article, story or essay that
is less than 2500 words or an
excerpt of not more than 1,000
words from a larger printed
work, not to exceed 10% of the
whole, whichever is less
Special works that combine
prose, poetry and illustrations
that are no more than 10% of the
total work
Guidelines for the use of multiple
copies:
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All
copies must contain the copyright
notice
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Copies are for one course only
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Copies are of one work from a single
author
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Copies are limited to no more than
three authors from a collective work
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Multiple copying can not exceed nine
times in one class term
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Copies may not be used a s a
substitute for an anthology or
collection
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The
copying of consumables is strictly
prohibited (workbooks, standardized
tests, etc.)
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The
same item may not be reproduced from
term to term
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Students may not be charged other
than the actual cost of the copies
(check District policy to
see if students can be charged for
copies)
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Multiple copies of current news
periodicals and newspapers may be
made, if they are not from
publications for students.
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STEVE ROSSI
BTU Local Counsel |
Mr.
Rossi is a Florida Bar Board Certified
Specialist in criminal trial law.
Certification is the highest level of
recognition by The Florida Bar of the
competency and experience of attorneys
in the areas of law approved for
certification by the Supreme Court of
Florida.
Mr. Rossi is a former Special Agent with
the Federal Bureau of Investigation (F.B.I.).
He was employed in both the New York and
Miami field offices. He investigated
numerous civil and criminal matters.
He is a former Broward County Assistant
State Attorney. During this time, Mr.
Rossi received several accolades as an
Attorney including being twice
recognized for most jury trials. Mr.
Rossi was both a misdemeanor and felony
prosecutor.
Mr. Rossi also represents the
Broward Teacher's Union
(BTU)
as its local, legal counsel. The Broward
Teacher's Union has more than 10,000
members. He has handled various
teacher-related cases in both civil and
criminal matters. He presents various
lectures and workshops focusing on
education law. He is an annual
instructor for the Broward County School
District’s New Teacher Orientation
Program discussing various issues in
teacher liability matters.
Steve Rossi is a long time South Florida
resident. He is a lawyer deeply rooted
in the community having lived and
attended schools locally. He has handled
various legal matters throughout the
state of Florida around the country. He
speaks Italian and conversational
Spanish.
For
more information about Legal Counsel
Steve Rossi please visit
www.attorneyrossi.com
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Q&A with AFL-CIO Working America
Lawyers
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Is there anything I can safely write
about in a blog for which my
employer cannot fire me?
I
have a blog and write for it on my
own time. I occasionally mention
funny things that happen to me at
work but don't identify who my
employer is. Can I get in trouble
for having this blog?
Can
my employer fire me for what I do on
my own time outside of work?
If an employee
was hurt because of not having
access to the personal protective
equipment, would the company be
liable?
Is there anything I can safely write
about in a blog for which my
employer cannot fire me?
A. In some states, including
California, New York and Washington,
D.C. (it figures, right?), if you
write about political matters, you
may be protected by laws making it
illegal to discriminate against you
for your political activity. Two
states (Colorado and North Dakota)
have laws restricting an employer's
ability to fire you for "lawful
conduct outside of work," which also
might offer some protection.
If you're whistleblowing--reporting
the employer's unlawful conduct--you
may have some protection if you've
first reported it to a government
agency. And if you use your blog to
communicate with your co-workers to
talk about forming a union or
otherwise banding together to oppose
bad working conditions, you may be
protected by labor laws which allow
you to engage in concerted activity
for "mutual aid and protection."
The above protections are fairly
limited, however. It bears
repeating: If you are concerned that
your employer will retaliate against
you for what you're saying, or you
would just prefer to keep it
private, the safest bet is to blog
anonymously or to restrict access to
your blog.
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Q. I
have a blog and write for it on my
own time. I occasionally mention
funny things that happen to me at
work but don't identify who my
employer is. Can I get in trouble
for having this blog?
A. Millions of people now have
their own blogs. Blog is short for
weblog--an online journal (or
newsletter) that is frequently
updated and intended for general
public consumption. A blog generally
reflects the personality of its
author or the website which
publishes it.
Some of the millions of people who
have blogs write about their work.
Your job is an important part of
your life, and it may be tempting to
share details or vent about bad
things that happen at work. But
doing so can be risky. Your employer
might not have a policy about
blogging--yet. It is likely,
however, that your employer's
policies already address issues
related to blogs, such as protecting
confidential information, upholding
the company's reputation and using
the Internet at work. If you violate
some of these policies through what
you write on your blog, you may not
have any recourse if you're fired.
And finding a new job may also be
difficult if potential employers
find your blog and are concerned
about what they learn about you and
your past employment by reading it.
The safest bet, if you are concerned
that your employer will retaliate
against you for what you're saying,
or would just prefer to keep it
private, is to blog anonymously or
to restrict access to your blog.
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Q. Can
my employer fire me for what I do on
my own time outside of work?
A. You
might think this simple question has
a simple answer, but unfortunately,
the answer is: it depends. It
depends on the activity in question
and whether your state's laws
protect that activity. As a general
rule, if there is not an existing
law protecting you from being fired
for the activity in question, and if
you are not a union or public
employee with "just cause"
protection against being fired
without a good reason, then you are
considered to be employed at will.
The "employment at will" doctrine
means that both the employer and the
employee can end the employment
relationship at any time without a
reason, and without any notice. This
means that your employer has the
right to end your employment at any
time for any reason, a bad reason or
no reason at all, as long as the
reason is not illegal, even if your
performance has been outstanding. So
if the reason you have been fired is
not illegal under the laws of your
state, then your employer can fire
you for what you do on your own time
outside of work.
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Q. If an
employee was hurt because of not
having access to the personal
protective equipment, would the
company be liable? At my company a
lift-assist was installed on a job
but was removed later, and it was
still needed.
A.
Generally, if an employee is hurt on
the job, the employer is responsible
for paying workers' compensation for
that injury or illness. Workers'
compensation is usually under state
law, although there are a few
exceptions for employees of the
federal government, and workers in
certain industries, such as mining,
harbor and longshore work, and the
production of nuclear weapons.
Employees for private employers, as
well as state or local governments,
are covered by state workers'
compensation law.
Workers' compensation laws are the
result of a compromise between
employers and injured workers. In
exchange for the right to sue an
employer, the injured worker does
not have to prove that her employer
was at fault, just that the injury
was work-related. Instead of getting
damages from a lawsuit, the employee
gets her medical expenses paid and
receives a set compensation amount
that is fixed by state law. So even
if an employer is at fault for
failing to supply safety equipment,
the injured worker generally cannot
sue the employer. She can only
receive workers' compensation. In a
few states, if the injury happened
because the employer violated a
safety rule, the compensation paid
to the employee could be increased
by a certain percentage.
There are a few limited ways to go
outside the workers' compensation
system. In some states, when a
worker is injured doing hazardous
work that the employer knows is
substantially certain to cause death
or serious bodily injury, the
injured worker may be allowed to sue
the employer directly. Sometimes an
injured worker can also sue the
manufacturer of equipment that has
caused an injury, as opposed to the
employer.
It is always better to
prevent injuries before they happen.
Here are some things that workers
can do to address a hazard in the
workplace:
* If there is a union or safety
committee in the workplace, report
the hazard or bring it up in the
next meeting.
* Talk to the employer and make sure
they know the condition is
hazardous.
* Call OSHA and tell them about the
hazard. When making a report to OSHA,
workers can request that their name
and other identifying information be
kept confidential. Depending on the
state, OSHA rules may be enforced by
the federal government or a state
agency. You can request that an OSHA
inspector come to your work and
conduct an inspection of the
hazardous condition. There are laws
that protect employees from
retaliation for making a call or a
complaint to OSHA.
If an OSHA inspector comes,
employees have the right to
participate in the inspection and
speak with the inspector.
If an OSHA inspector finds a
hazardous condition, the OSHA
inspector can issue a citation to
the employer. The citation will
usually have a fine that the
employer must pay, as well as a
deadline for correcting the hazard.
The employer is required to post
this information where employees can
see it.
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Teacher
Liability Brochure
8 Panel
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Could you be acussed of missconduct?
Yes! BTU is here to repesent you in the
event of a legal matter. And is your job
to know the DO'S, and DON'TS in order to
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AFT Members Occupational Liability Plan
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