Dear Legal Mailbag:
I try to be fair in dealing with teacher concerns, big and small. But the latest complaint has me stumped. One of my teachers woke up from a deep sleep and realized that she has been paid on the wrong track of the salary schedule for the last eight years. She has had her Sixth Year degree throughout her employment with my school district, and she should have been placed on the Sixth Year track of the salary schedule when she was hired. However, apparently there was some sort of mistake in HR, and she was placed and remains on the MA track.
Now that the teacher is aware of the mistake, she is fit to be tied. She figured out that there is a difference between the MA and Sixth Year tracks of about $3,000, and she is asking me to approve her request for payment of the approximately $24,000 she claims she was underpaid over the last eight years.
I am sympathetic to her situation, but I was unequivocal in telling the teacher that we would not be paying her $24,000. But the teacher did not back down, and she told me that she will be filing a grievance to recover the money that she should have been paid. Will we have to pay this money?
Legal Mailbag is also sympathetic to this teacher’s situation. Depending on the wording of the grievance procedure in the teacher collective bargaining agreement, however, it is likely that her grievance will not be successful.
Legal Mailbag starts with the term “grievance,” which collective bargaining agreements typically define as an “alleged violation, misinterpretation or misapplication of a specific contract provision.” The placement of this teacher on the wrong salary track was a violation of the contract, and thus the teacher surely wins her grievance, right? Not so fast.
Legal Mailbag then looks to see that there is a contractual timeline for the filing of a grievance. Such timelines are typically set forth in provisions such as, “A grievance must be filed within X days of the time the teacher knew or should have known of the situation giving rise to the grievance, or the grievance shall be considered waived.” Such timelines vary from, say, 10 days to an extreme of 90 days in which to file a grievance. Here, the teacher woke up after eight years. Surely, her grievance is time-barred, right? Not so fast.
Legal Mailbag notes that the issuance of each paycheck at the wrong rate is a new violation of the contract. In labor relations, such a situation is called a “continuing grievance,” and given the continuing violation, surely the teacher’s grievance is not time-barred, right? Not so fast.
Legal Mailbag reconciles these competing principles as follows. While each of the incorrect paychecks was a contract violation, most of the checks were received outside the time in which a grievance could be filed, and thus the teacher has waived her grievance as to those paychecks. However, for those paychecks that fall within the grievance timeline, the teacher has a remedy and should be paid the correct amount. Most important, the teacher has not waived her right to insist on being paid on the correct salary track going forward.
Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.