[AAUP-ULL-List] [ALFS-Alexandria-Summit] Very short mid-summer poll
Paul F. Bell
bz9 at cox.net
Thu Jul 5 13:59:45 CDT 2018
Hello:
Kevin Cope and Jim Robinson commented on Rushing’s posting regarding
appointment letters. Rushing asked if anyone had gotten an annual
appointment letter that stated that the professor’s terms and conditions of
employment are in the Faculty Handbook and elsewhere.
Kevin Cope commented that such letters rarely happen because it makes the
handbook legally enforceable (and that is a very faculty friendly thing to
do).
I have studied this as an attorney and have commented to Kevin's posting
below with my comments in italics.
*Kevin Cope*: An interesting feature of this snippet of administrative
language is that it turns heavily on the faculty handbook. In most
universities, the faculty handbook has no legal standing. It is usually a
compendium of and index to policies that do have legal standing, but it
itself is only a guide.
*Me---Paul Bell: True, most universities don’t recognize the faculty
handbook as legally enforceable. The university made the handbook legally
enforceable in Rushing's case when it stated that the faculty member’s job
duties are described in the handbook. Since the faculty member is employed
for a period of time, he is, therefore, in an employment contract with the
university. Without the legal enforceability of the written handbook, the
contract is limited to promises made as to wages, firing only for good
cause during the term of the contract, and, for government workers with
tenure, due process for firing. With the handbook legally enforceable, a
court can also determine whether the administration has followed the
procedures for evaluating tenure, whether the procedures for hearing
grievances or for firing have been followed, and whether other rights
promised to faculty in the handbook have been delivered. *
*Kevin Cope:* I believe that the UL System officials would have a hard
time finding policies or any other legal documents that would accord so
high a standing to the faculty handbook as is claimed in the quoted passage.
*PB: True, SLU gave its faculty a benefit in describing the faculty
handbook as describing one’s terms and conditions of employment. It is
within their prerogative to make the handbook legally enforceable. Twenty
years ago, an AAUP organizer visiting LSU told us that if you want one good
thing from the administration, ask them to make the faculty handbook
legally enforceable. *
*The above statement in Rushing's appointment letter, however, also allowed
the administration to unilaterally modify the terms and conditions of
Rushing’s employment: [the terms and conditions of Rushing’s employment is]
"subject to modification as needed and are determined by the administrative
officers of the institution”. If faculty agreed to this, it ends any
faculty governance rights and tenure. All the administration would have to
do to fire a faculty member is to determine whether the faculty member’s
employment was needed. This was the major intent of adding this sentence
to the faculty member’s annual appointment letters—the employment contract
was completely dependent upon the decisions of the administration. It
could not institute policies retroactively but could do as it wished
proactively. It would allow virtually unfettered decision making by the
administration.*
*A firing could be done after some study and the determination that the
firing of the professor was needed. For government employees, the
professor would still get due process as required under the Constitution
(notice of accusations and a hearing on whether to fire) but the good cause
needed for firing could be that the administration determined it was
needed. This would be because the terms of the contract between
administration and professor were changed upon the faculty member's
approval of the appointment letter. *
*A faculty member given a "Rushing" appointment letter should cross out
“subject to modification as needed and are determined by the administrative
officers of the institution” and place his initial next to the cross-out.
He then can return the appointment letter to the administration notifying
them of his objection to their changing the terms and conditions of his
employment that would have allowed the administration to do as it wishes as
long as the administration figured it was needed. *
*KC:* Thus, it would seem that a records request of the form “please
provide any documentation indicating the legal status of the faculty
handbook or explaining how it pertains to faculty contracts” might be in
order.
Behind this issue, too, is another policy lacuna. Most universities have
either or both a workload policy and a compensation policy (and many also
have supplemental compensation policies to cover everything from faculty
moonlighting to grant-contract income and on to extra work done for the
university).
*PB: Courts have recognized whether there is a handbook or not, employer's
promises regarding wages are legally enforceable. So, it matters not that
SLU made the handbook legally enforceable above regarding promises for
salary, paid vacation or bonuses. Those terms and conditions of employment
are still legally enforceable despite the court’s blindness to other
handbook language or employer policies. *
*These issues came into play in 1997 with a tenure track faculty member who
thought the handbook’s declarations on the tenure process were legally
enforceable.* *They weren't --- he was subject to the employment-at-will
doctrine.* *That doctrine with about 20 exceptions allows employer to fire
for any or no reason.* *Tulane Assistant Professor Schwarz said, “I would
not have given up six years of my professional career at Tulane if I
believed that Tulane was free to deny me tenure for no valid reason”* Schwarz
v Tulane University*; 690 So.2d 895 (La. App. 4 Cir. 1997).* *Tulane could
deny him tenure for no valid reason because the faculty handbook was not
legally enforceable.* *The promises in that handbook on how to get tenure
were false, or at least when pressed in court, Tulane declared they were
just words or baloney.*
Again, it would be a good idea to review those policies so as to assess the
validity and standing of the broad claims made in this excerpt.
*PB: Generally, courts view statements in the appointment letter as making
the handbook legally enforceable. That is what the dissenting judge in
“Ruching” declared (Steve Rushing’s case of Ruching (sic) v. Bd. of
Supervisors, 2003-0871 ( La. App. 1 Cir 05/14/04), 874 So. 2d 432). I
could find better proof than that, if you like. *
*How important is it that the faculty handbook is legally enforceable? For
those seeking tenure, it means the university must honor its tenure-getting
process. For those already tenured, it would mean that the handbook could
be a step toward providing benefits much like those benefits guaranteed in
a collective bargaining agreement. It ensures that the process for losing
tenure as described in the handbook are the same ones the court would
recognize as required to meet due process grounds. The court would use the
handbook process instead of the lesser requirements guaranteed by the
Constitution of notice and hearing. There could also be grievance policies
that would be honored under a legally enforceable handbook. *
*In practice, however, handbooks are written in exacting detail of the
duties employees owe employers and not the reverse. *
*As to the right to hearing a grievance as provided in a legally
enforceable handbook, the court did not so rule in Steve Rushing’s case
noted above.** The court found he had no rights to have his grievances
heard despite the appointment-letter language. Perhaps out of
embarrassment, the court did not publish the opinion. The court decided
the case on constitutional grounds and not on the enforceability of the
handbook. Only the dissenting judge argued that the handbook gave Rushing
additional rights (is that right, Steve? Since it is unpublished, I cannot
even get a copy on LexisNexis). *
*Paul Bell, Attorney*
*http://www.batonrougeemploymentlawyer.com
<http://www.batonrougeemploymentlawyer.com>*
Paul F. Bell
Bell Law Firm, LLC
4949 Tulane Drive
Baton Rouge, LA 70808
(225) 284-3235 888-812-7933_fax Paul.F.Bell at gmail.com
http://www.BatonRougeEmploymentLawyer.com
<http://www.batonrougeemploymentlawyer.com>
If you are not the intended recipient, please email me.
On Mon, Jun 25, 2018 at 8:51 AM, Kevin L Cope via alfs-alexandria-summit <
alfs-alexandria-summit at lists.louislibraries.org> wrote:
> An interesting feature of this snippet of administrative language is that
> it turns heavily on the faculty handbook. In most universities, the
> faculty handbook has no legal standing. It is usually a compendium of and
> index to policies that do have legal standing, but it itself is only a
> guide. I believe that the UL System officials would have a hard time
> finding policies or any other legal documents that would accord so high a
> standing to the faculty handbook as is claimed in the quoted passage.
> Thus, it would seem that a records request of the form “please provide any
> documentation indicating the legal status of the faculty handbook or
> explaining how it pertains to faculty contracts” might be in order. Behind
> this issue, too, is another policy lacuna. Most universities have either
> or both a workload policy and a compensation policy (and many also have
> supplemental compensation policies to cover everything from faculty
> moonlighting to grant-contract income and on to extra work done for the
> university). Again, it would be a good idea to review those policies so as
> to assess the validity and standing of the broad claims made in this
> excerpt. Finally, most universities of any quality have faculty committees
> or faculty senate delegates who review work-related policies. It would be
> interesting to discover the authorship and the edition history of the
> faculty handbook. With best wishes, KEVIN Kevin L. Cope
>
>
>
> *From:* alfs-alexandria-summit <alfs-alexandria-summit-
> bounces at lists.louislibraries.org> *On Behalf Of *kuyperush--- via
> alfs-alexandria-summit
> *Sent:* Monday, June 25, 2018 7:25 AM
> *To:* aaupla at lists.louislibraries.org; aaup-ull-list at lists.louisiana.edu;
> alfs-alexandria-summit at lists.louislibraries.org
> *Cc:* kuyperush at aol.com; stevenrushing321 at gmail.com
> *Subject:* [ALFS-Alexandria-Summit] Very short mid-summer poll
>
>
>
> Dear Colleagues,
>
> I have only one question-primarily for our colleagues under the University
> of Louisiana System.
>
> 1. Does this language (or anything similar) appear in your annual
> appointment letters?
>
> "Your specific job-related duties, responsibilities and assignments are
> described in the Faculty Handbook and elsewhere (e.g. the University
> Catalogue and departmental evaluation procedures) are subject to
> modification as needed and are determined by the administrative officers of
> the institution."
>
> Thanks for participating,
>
> Stephen Rushing
> President of the Southeastern Louisiana University Chapter of the AAUP
>
> _______________________________________________
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> alfs-alexandria-summit
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