The Rights of School Employees

A School Board and its administration hires, fires, assigns, transfers, promotes, evaluates and establishes conditions of employment for school employees in South Carolina.

School employees have the RIGHT to organize, collaborate, and hold the district accountable for compliance with federal and state laws and regulations, and School Board policies.

School employees often fall into three groups: those who believe they have no rights, those who believe they have rights, and those who believe they have rights that they don’t actually have.
Therefore, when someone asks “What are my rights?” the answer is “It depends”.

Except for situations regulated by government agencies like EEOC and OSHA, the laws in South Carolina are mostly silent as they relate to day-to-day working conditions. For example, an employee in search of a law to address a “hostile work environment” won’t find one unless the situation falls under the protection of Title VII of Civil Rights Act of 1964. The Teacher Employment and Dismissal Act (TEDA) provides dues process for the employees covered by that Statute.
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*Equal Employment Opportunity Commission

*Occupational Safety and Health Administration
Due Process- fair treatment through the normal judicial system, especially as a citizen's entitlement.
Hostile Work Environment- Actions or behavior that discriminates against a protected classification such as age, race, religion, sex, or disability Behavior that lasts over time, and is not be limited to an off-color remark or two.
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There is often confusion related to the terms “Right-to-Work”, “At-Will” and “Collective Bargaining” and what they mean in South Carolina is because SC is a “Right to Work” state. South Carolina’s Right to Work law isn’t the culprit.

Right-to-Work laws are statutes enforced in twenty-two U.S. states, allowed under provisions of the Taft-Hartley Act, which prohibit agreements that make union membership a condition of employment, either before or after hiring, So, on its face, this language doesn’t prohibit any employee from joining nor does it force them to. It simply means that it’s their choice.

South Carolina Right to Work Law:
S.C. Code Ann 41-7-10 though 90 41-7-10
Title 41. Labor and Employment
Chapter 7. RIGHT TO WORK

41-7-10. Denial of right to work for membership or non-membership in labor organization declared to be against public policy.

It is hereby declared to be the public policy of this State that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union
or labor organization. (March 1954)

41-7-20. The employer and labor union cannot agree to require or deny union membership to get a job or keep one.

The inability for school employees in SC to engage in COLLECTIVE BARGINING comes from a Supreme Court Ruling. See Branch v City of Myrtle Beach. Until or unless a law is passed in SC to allow collective bargaining for school employees, the Supreme Court Ruling carries the weight of a law, and that “law” prohibits collective bargaining.

Being “At-Will” means that employees may be terminated or may quit their job for any reason, a good reason, a bad reason, or no reason, and without notice. School employees who have a contract with their school district, are bound by the provisions of that contract. The terms and conditions of contracts are decided by elected leaders, the State Department of Education, and School Boards.

The following information provides the legal source of “employment rights” in SC. These should serve as evidence of the importance of the political process, holding elected leaders accountable, and exercising individual voting rights.

Equal Protection: The Fourteenth Amendment guarantees citizens equal protection under the law. This provision is applicable to state and local governmental employers and prohibits discrimination on the basis of race, sex, age and other similar factors.

Due Process Law: The Fourth Amendment prohibits the taking of any property interest without the due process of law.

Free Speech: The First Amendment prohibits discharging employees or making other adverse decisions based on speech- related activity concerning matters of public concern.

Invasion of Privacy: The Fourth, Fifth, and Fourteenth Amendments prohibit unreasonable invasion of privacy, which has been recognized to extend to matters relating to searches and other invasions of privacy.

42 U.S.C 1983- Civil action for deprivation of rights. This provides an “open door” to federal constitutional rights and provides the statutory basis upon which federal constitutional claims may be brought.

Title III of the 1964 Civil Rights Act- This statutory provision prohibits discrimination on the basis of race, sex, national origin and religion.

Age Discrimination Employment Act- The Act prohibits discrimination on the basis of age and provides a broad array of remedies for victims of age discrimination.

Americans with Disabilities Act- This Act prohibits discrimination on the basis of age and may require employers to make accommodations to otherwise qualified applicants and employees.

Federal Wage and Hour Law- The statutes and regulations guarantee minimum wage, overtime and other similar rights.

Equal Pay Act of 1963- This provision guarantees women qual pay for substantially equal work with men employed within the same establishment.

Occupational Safety and Health Act (OSHA) and other Federal Safety Laws- Federal statutory law contains various provisions guaranteeing the safety of employees and provides rights against discharge arising from a refusal to perform duties in an unsafe work environment.

Teacher Employment and Dismissal Act (TEDA)- This provision guarantees public school employees a broad range of legal rights, including the dismissal procedure for employees.

State Employee Grievance Act- This statute guarantees state employees the right to due process before the State Employee Grievance Committee if subject to discharge or other adverse employment action. The applies to members of The SCEA who work for state agencies or schools. Examples are the Department of Corrections, the Governor’s School and the School for the Deaf and the Blind.

South Carolina Human Affairs Act- This Act, which is modeled on Title VII of the 1964 Civil Rights Act, is administered by the South Carolina Human Affairs Commission (SCHAC/EEOC) and prohibits discrimination on the basis of race, sex, religion, national origin and conditions of disability.

Unemployment Insurance- The South Carolina Department of Employment and Workforce (aka Employment Security Commission), located online at https://dew.sc.gov, administers federal unemployment insurance benefits in South Carolina, and guarantees employees who are laid off or discharged for a reason not constituting “cause” certain unemployment insurance benefits.
-Note: If you choose to resign, you might not receive unemployment benefits.

Breach of Contract- The South Carolina Supreme Court held that employee handbooks may provide contractual rights to covered employees. The violation of procedures or rights, guaranteed in such handbooks, may provide a basis for a breach of contract claim.

Intentional Infliction of Emotional Distress- An employee’s discharge or general treatment by an employer may be so outrageous as to give rise to a cause of action or international infliction of emotional distress. (See EEOC, OSHA, CDC, and NIOSH. All sites have information on this topic.)
-The SCEA does not offer legal representation for Intentional Infliction of Emotional Distress.

Defamation (Slander/Libel)- A false allegation by an employer, if distributed to third parties, may give rise to an action for defamation of character.
-The SCEA does not offer legal representation for Intentional Infliction of Emotional Distress.

Modification of At-Will Employment Doctrine- The South Carolina Supreme Court recognized a “Modification of the At-Will Employment Doctrine” where the termination of an employee violates a significant public policy.

Many overlooked rights are provided by school districts through employee handbooks and School Board policies. Most districts provide access to their policies online. The following link provides access to those policies: https://www.scsba.org/policy-services/policies-online/ These policies include employment procedures, due process and an Employee Grievance Procedure.

CAUTION: An employee grievance must be filed within a certain number of days of the incident. In most school districts, the deadline is 10 days. Members should check their district’s grievance procedure to make sure they do not miss this deadline.

1. Informal Approach to the “Local” Level

I.The employee talks to the school principal
II. The Local President/Executive Committee talks to the Superintendent
III. The Local addresses the School Board
(Attempt to get on the agenda. This is typically involving systemic issues.)

2. Grievance Procedure
Grievances are a method for establishing rights, protecting rights, interpreting a contract or policy and solving problems at the lowest possible level. The outcome of grievances can result in a new policy, clarification of an existing policy, or modification of existing policy.

3. Government Agency Action
School employees may be able to go to a state or federal agency for an employment dispute. It is a slow process. Examples are EEOC, OSHA, and the Department of Labor. School employees should file a grievance using their district grievance procedure before taking their concern to a state or federal agency.

4. Legislative Action
Rights can be established by introducing legislation. This requires support of elected officials. Elected officials can be located at www.TheSCEA.org/legcontact

5. Collective Action
By mobilizing members and potential members to advocate for a specific issues or “right”, anything is possible! This is referred to as “Issue Organizing”. Issue Organizing is at the heart of every organizing approach. People will fight for issues that matter most to them.

JoinTheSCEA.org

Email: help@thescea.org
Website: thescea.org/contact
Location: 2999 Sunset Blvd, West Columbia, SC, USA
Phone: 803.772.6553
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