By Kevin Lungwitz
Removing an employee from a contentious or controversial situation, such as an accusation involving the safety of the campus community, can be a critically important move. Administrative leave is the useful tool that accomplishes the employee’s removal, pending an investigation. As long as the employee continues to receive pay and benefits, the employee does not have an immediate legal claim. Because you might find yourself in either position, this article tacks back and forth between the administrator enacting administrative leave, and the employee being placed on administrative leave.
Usual Guidelines for Administrative Leave
Human resources (or in some cases, the campus administrator) will issue the employee a letter that may contain variations of one or more of these bulleted points.
“Do not visit your campus or any district property without written approval from the principal or human resources or superintendent.”
Let’s assume, even in the absence of proven disruptive conduct, the school district probably has the authority to banish an employee from district property. I would advise the employee to comply because fighting this would waste legal resources that will be of more value at the end of the investigation. What if the employee is also a parent of a child in the district? Usually, exceptions are made for the parent/employee to attend their children’s events as long as certain rules are followed (i.e., check in with the principal, do not discuss anything to do with the allegations, etc.)
“Do not contact or communicate with district employees, parents, or students regarding any aspect of your employment.”
Again, let’s assume the district probably has the right to curtail the employee’s communications and contacts with the school community as they relate to the employee’s work. (It is questionable whether the district can regulate the employee’s ability to talk to members of the community at the grocery store, bowling alley, or place of worship about non-work related matters.) It is surprising how some employees cannot comply with this directive. They will continue to text, email, or call colleagues to talk about work. And more often than not, the district will find out and add it to the list of alleged infractions.
“But what do I do when students, parents, and colleagues reach out to me and ask what’s going on or how I am doing?” Either don’t respond or tell them, “I appreciate your concern. I am not able to discuss work right now but I look forward to doing so in the near future.” Period. End of sentence.
“You must be available by phone during working hours and be available to physically report to a location the same day, when directed.”
This is why administrative leave is also known as “house arrest.” There was once a day when administrative leave meant the employee was a free agent until the district gave a two-day notice to return. But the optics of a paid vacation to the Cayman Islands did not sit well with some, so now the employee must “be available.” I would advise the employee to feel free to go for a long walk in the park and get your grocery shopping done, but keep your phone with you and be ready to return the same day.
An employee placed on administrative leave should carefully follow the rules. If the employee is already in some sort of trouble, the district will not hesitate to use a violation of these directives as the tipping point for a termination or nonrenewal recommendation.
What Happens After Administrative Leave?
There will come a day when the investigation concludes, and when the district decides the employee’s status. That day is usually preceded by a request to come to a meeting in HR to receive the result. You can bet your molars that one or more of these four things will happen in that meeting. The employee will be:
- Exonerated and put back to work in the same position; or
- Reassigned; and/or
- Written up; and/or
- Asked to resign or face dismissal.
More About the Big HR Meeting
The employee will often want legal representation at this meeting, but it is not likely needed as long as the employee understands the following:
- Even though they may insinuate otherwise, neither the superintendent nor HR can fire a contract employee on the spot. Dismissal of a contract employee is a lengthy procedure. (Conversely, an at-will employee may be fired on the spot.)
- More listening is better than talking. It is unlikely that whatever the employee says in this meeting will change anything. As the saying goes, “When you’re in a hole, stop digging.” The HR professional wants to deliver a message, not hear the employee blather on about how innocent they are. Importantly, if the allegations involve possible criminal conduct, it is imperative the employee stay quiet. (In the unlikely event HR actually wants more information from the employee, the employee should not answer on the spot.)
- The employee should sign for receipt of any documents and write, “I do not agree,” by their signature, if this makes the employee feel better.
- The employee should not resign in this meeting. If the district wants the employee’s resignation at this meeting, the district will accept the resignation a week or two later. It is best for the employee to talk to their loved ones and legal counsel before resigning. If you are on the administrative side of this deal, give the employee a fair amount of time to make this decision so that you are not accused of coercing this important decision.
Also, if the employee has a lawyer, it may be possible to dispense with this meeting all together. In some instances, the school district lawyer and the employee’s lawyer can work out these details, sparing everyone from this dramatic meeting.
Can Administrative Leave Be Challenged?
Employees do not like administrative leave. Sure, on paper you can stay home and watch Dog The Bounty Hunter reruns, but in reality, administrative leave feels like a guilty verdict. There is a stigma to it, and some districts even ask about it on applications. “But is admin leave legal?” In moderation, probably. Almost every professional contract says something like:
“Assignment/Reassignment: You understand that the District has the right to assign or reassign you to positions, or additional duties and to make changes in responsibilities, work, or transfers, at any time during this Contract.”
It is likely that admin leave is a type of contractual reassignment that can be executed by the superintendent or designee. Suppose an employee has been on administrative leave for two months with no end in sight and is going absolutely stir-crazy at home. The employee could file a grievance over the deprivation of the contracted position, the lack of a resolution to the investigation, and the prolonged stigma attached to it all. But, as long as the employee is receiving the full financial benefit of the contract, administrative leave will be difficult to legally challenge.
Negotiated Leave
Sometimes, administrative leave is negotiated as part of a resignation package. Lately, some employees have been asking that the leave be called and coded “Professional leave” or “personal leave” to avoid the stigma of administrative leave. This may or may not work. The employee will still have to be honest on the next job application, no matter what the leave is called.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
TEPSA News, March/April 2023, Vol 80, No 2
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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
