Legal>Grievance Awareness for ESPs

Grievance Awareness for ESPs

A grievance can be defined as a specific complaint about your wages, hours, or conditions of work. TSTA has as a goal to empower its members to pursue their own grievances under the applicable school district policy. Although virtually any aspect of employment may be technically grievable, only certain grievances are legally reviewable by the Commissioner of Education.

According to the Texas Education Code §7.057, the only grievances which may be appealed to the Commissioner of Education are ones involving a breach of the employment contract coupled with economic harm, or a violation of a state school law or regulation by the school district. In these circumstances, a grievance may warrant the advice or assistance of the TSTA Help Center. TSTA legal staff appeals scores of cases every year to the Commissioner of Education.

Deciding appeal ability

• Is it a violation of the written employment contract? If so, does it cause economic harm?

• Is it a violation of state school law regulation?

Why a grievance procedure?

• To provide a safe, acceptable, and systematic way to settle problems.

• To provide a method for interpreting the agreement or board policies.

• To provide members with the opportunity to tell their side of the story.

• To help maintain and establish member rights.

• To provide a procedure by which the local association can serve as a responsible advocate in support of the member.

• To provide management with a channel for member complaints.

Member rights under the law

U.S. Constitution*

• First Amendment: Freedom of worship, speech, association, political choice.

• Fifth and Fourteenth Amendments: A citizen will not be deprived of life, liberty or property without due process. (Due process is not an absolute right.)

Federal Law*

• Title IX of the 1972 Education Amendments—prevents discrimination on the basis of sex.

• Title VII—prevents discrimination because of race, color, religion, sex or national origin.

• P.L. 95-555—broadens the definition of "sex" in Title VII to cover pregnancy related illnesses.

• Equal Pay Act—equal pay for equal work.

• ADEA—prohibits discrimination based on handicap.

• ADA—Americans with Disabilities Act prohibits discrimination against persons with disabilities in employment, governmental programs and services, and public accommodations.

• FLSA—Fair Labor Standards Act provides minimum wage and overtime requirements.

• FMLA – Family and Medical Leave Act provides up to 12 weeks per year of unpaid leave to tend to serious illness of employee or employee’s immediate family, or to be with new child.

Texas Constitution*

• Article 1, Section 3a—a person is entitled to equal protection under the law.

• Article 1, Section 8—entitles person to free speech when speaking as a citizen on matters of public concerns.

• Article 1, Section 19—due course of law for those to be "in any manner" disenfranchised.

• Article 1, Section 27—citizens rights to redress grievances.

Texas Education Code*

• 22.001—provides continuous payroll deduction for association dues.

• 22.003—provides 5 days per year of personal leave to every school district employee with no limit on accumulation and completely transferable between school districts. Additional days provided if assaulted during duty time.

• 22.00—each district must make available to its employees group health insurance that is comparable to state employee health insurance.

• 22.05—provides immunity from liability for any school employee whose job requires certification (including bus drivers) who commits an act within the scope of employment and uses judgment and discretion; except in instances (1) where the employee uses excessive force or negligence in disciplining, causing bodily injury to a student; and (2) involving the operation, use, and maintenance of a motor vehicle.

• 37.015—if the student has regular contact with support professionals, the employee must be notified by the campus administration if the student committed a violent crime.

Texas Government Code*

• 552.102—gives members the right to see their personnel files and get copies of them.

• 554.002—prohibits retaliation against employees who report illegal activities of district.

• 617.004—protects the right of employees to belong to a labor organization.

• 617.005—right of public employees to present grievances concerning wages, hours, and conditions of employment individually or through a representative.

Texas Labor Code*

21.051—prohibits employment discrimination on the basis of race, color, disability, religion, sex, national origin or age.

Educators Code of Ethics*

Allows any individual to report violations of the Code of Ethics to the State Board for Educator Certification.

*Not a state school law or regulation for purposes of appealing to the Commissioner of Education.
 

A final note

This is a general guide for TSTA members and is not intended to provide complete information or legal advice on specific problems. If you are having a problem, you should contact the TSTA Help Center (877-ASK-TSTA) immediately.