Though springtime may still feel far away, now is the time for independent schools to be thinking about their faculty employment agreements for the 2024-2025 school year. These types of agreements are typically not extensive but do require that schools carefully consider the terms and conditions of employment that best suit the needs – and culture – of their particular school. Here are a few key concepts and considerations to keep in mind.
Defining the Employment Relationship
Independent schools have historically issued annual faculty “contracts” for each academic year. While these documents are often referred to as “contracts,” that may not always be the case and schools should ensure that the language in their agreements accurately create the intended employment relationship. Many agreements, or appointment letters, may be intended to establish an “at-will” employment relationship rather than a contractual one. Employment at-will means that both the employee and the school are free to end the employment relationship at any time, for any reason. At-will employment provides for the greatest flexibility for both sides. Schools that desire to have an at-will relationship should ensure the language is clear and unambiguous, consistent with handbook policies and is not contradicted by other provisions in the agreement.
In contrast, a contract is a binding agreement for a fixed term and can only be terminated prior to the end of the term by mutual agreement or for certain, identified reasons. This concept is referred to as termination “for cause,” which typically allows for the contract to be terminated for reasons such as unsatisfactory job performance or misconduct.
Termination and Renewal
If the agreement is a true contract, it should identify the grounds for terminating employment before the end of the term. Typically, this would require more than a minor misstep and include language that the school (or Head of School), has determined that the employee has demonstrated an inability to perform essential job duties, or has engaged in insubordination, dishonesty, personal misconduct, or immoral conduct. In addition, since these agreements are usually for one year only, the agreement should include express language that there is no automatic right to renewal beyond the current school year. Even if the agreement is for at-will employment, schools may still wish to be clear that the appointment is not a guarantee of employment for subsequent years.
Beyond the concepts discussed above, here is some of the basic information that schools should have in their faculty employment agreements, regardless of whether they are contracts or at-will appointments:
- Job Title with Description of Essential Duties
- Classification: Is the position part-time or full-time? Exempt or non-exempt?
- Compensation and Payroll Schedule: Is the employee being paid on a 10 month or 12 month basis? Is payroll monthly or bi-weekly?
- Expectation of Professionalism and reference to Handbook Policies
- Employee Signature and Acceptance Date
Background Checks and Other Contingencies
Offers of employment should include clear language that employment is contingent upon satisfactory results of any background checks, including criminal record history. Schools may also wish to make employment contingent upon compliance with other requirements, such as participation in mandatory trainings. In some states (like Connecticut) where faculty may be required to drive students, it is also important to highlight that obtaining and maintaining a valid driver’s license with the required endorsement necessary to drive student vehicles, along with compliance with drug testing requirements, are prerequisites to employment.
Unique to Independent Schools
Independent schools are a unique type of employer, and their employment agreements should take into consideration factors such as housing or the need to maintain a more flexible job description. For example, if the position is one that requires the employee to live in school housing (for the convenience of the employer), it is useful to include this in the offer of employment, even if the school has a separate housing agreement or more detailed housing policies in its faculty/employee handbook. Or, if the individual has coaching or other specific extracurricular assignments that are essential components of their position, those should be included in the agreements, too. Likewise, given the reality that some assignments may not be fully known until student enrollment is confirmed, schools may also wish to consider language that will allow the school to modify assignments and duties, or even terminate the contract, if there is a material change in enrollment or unexpected event – such as a pandemic, that drastically alters the school’s needs for the coming year.For legal questions regarding faculty and staff employment agreements, please contact any member of our independent school employment team.