Legal Services/Grievances

For years, WCEA/WVEA has been known for having the best representation in the education community. If you are a public school educator, support professional, student or substitute, employment protection is a must. Thousands of lawsuits are filed against education employees every year, and you need to know your legal rights. Who would you call if you had:

  • An unfair dismissal hearing such as a non-renewal or termination?
  • A dispute with your employer?
  • Civil rights and constitutional claims?

One of the greatest misconceptions about WVEA is that since the organization accepts principals, it will advocate for a principal in a dispute with a teacher. That is 100% FALSE. Under no circumstances will any WVEA employee advocate formally or informally for a principal/administrator against a teacher. WVEA employees face immediate termination for doing so.

WVEA Legal services are there to assist WCEA/WVEA members with employment related disputes at no cost to the member. WCEA/WVEA members also receive liability coverage as educators:

  • Up to $1 million per occurrence for civil suits (other than civil rights issues or claims);
  • $300,000 per occurrence for the defense of civil rights claims;
  • $35,000 in reimbursements for defense of employment related criminal charges (in which the member is exonerated);
  • Full reimbursement for the cost of defending corporal punishment, regardless of the outcome;
  • $1,000 for a bail bond; and
  • $500 for assault-related personal property damage

Additionally, members are entitled to two free 30-minute consultation sessions with an attorney in any membership year, as well as a 30 percent discount off the attorney’s regular hourly fee (in 5 core areas).

Grievance Procedure:

In the past, there has been dissatisfaction with the grievance procedure. As a result of this dissatisfaction, a study was commissioned by the legislature and conducted by professors from Marshall and WVU. After this study was concluded, the governor appointed a commission to address problems with the procedure and recommend legislation to improve it.

Below is an outline of the major provisions of the bill (SB442) including the new steps for the grievance procedure. The bill was passed in the 2007 Legislative Session.

Important Provisions

  • Combines the separate procedures for state employees and public school employees into one unified procedure in Chapter Six of the WV Code 6C-2-1 et seq.
  • The new title is West Virginia Public Employees Grievance Board and the Board consists of the following:
  • One person representing the largest labor organization in the state.
  • One person representing an education employee organization.
  • One employer representative from the executive branch.
  • One employer representative from secondary or higher education.
  • One citizen member who is not engaged in public or education employment.
  • The new board takes effect July 1, 2007. The employment of all existing administrative law judges ends at that time and the ALJ positions will be refilled by the new board. Present employees may reapply for their positions.
  • Creates a system of data collection to keep track of the number of grievances filed at each level and how they were resolved. This information will help drive future revisions to the procedure.

Definitions
“Chief Administrator”

  • For regular education employees this will almost always be the county superintendent of schools.
  • For RESA employees this will be the RESA Executive Director.
  • For higher education employees this will generally be the president of the institution.

“Discrimination, Harassment and Favoritism”

  • These terms no longer have separate definitions but they are set forth in the definition of a “Grievance.”

Level One

  • A grievance must be filed within fifteen days of the occurrence of the event that the grievance is based.
  • The grievance must be filed with the chief administrator stating the nature of the grievance and relief requested.
  • An additional copy of the grievance must be filed with the Grievance Board for data collection.
  • The employee may choose to hold a conference or a hearing before the chief administrator. A conference is less formal and does not involve testimony of witnesses, etc.
  • The hearing or conference must be held within ten days of receipt of the grievance.
  • A written decision must be issued within fifteen days of the conference or hearing.

Appeal from Level One

  • If the grievant is not satisfied with the level one decision, it may be appealed to level two. If both the grievant and the chief administrator agree, level two may be skipped and the grievance may go directly to level three.
  • Employees who are suspended without pay, dismissed, or demoted may file their complaint originally at level III.

Level Two – Alternative Dispute Resolution (ADR)

  • Level two provides an opportunity for the parties to reach an agreement to settle the grievance with the aid of a mediator.
  • An appeal must be filed with the grievance board within ten days of receiving an adverse decision.
  • Mediation can be conducted by a trained employee of the Grievance Board or by a private mediator if both parties agree and split the cost.
  • The Grievance Board must schedule the mediation within twenty days of receiving the request.
  • Any agreement reached must be reduced to writing within fifteen days and the parties are bound by it.
  • If both parties agree, they can use a new process called Mediation/Arbitration (Med-Arb). If the parties cannot reach an agreement, the Mediator becomes an Arbitrator and issues a final order. Both parties must agree in advance to be bound by the decision and to waive any right to appeal. If this process is successful it could lead to binding arbitration.

Appeal from Level Two

  • If the parties cannot reach agreement, the mediator must provide the parties with a written evaluation of the issues involved as well as a scheduling and discovery order for level three.
  • Within ten days of receipt of the report of unsuccessful resolution, the grievant may file a written appeal with the employer and the Grievance Board requesting a hearing before an Administrative Law Judge.

Level Three

  • Upon receipt of the written appeal, the ALJ must contact the parties regarding the date of the hearing as well as other procedural deadlines.
  • Within thirty days following the hearing, the ALJ must issue a written decision to all parties.

Appeal to Circuit Court

  • Either party may appeal the decision of the ALJ to the Circuit Court. All appeals are heard in Kanawha County.
  • The appeal must be filed within thirty days of receipt of the ALJ’s decision.

General Rules

  • “Days” means working days and does not include weekends, holidays, or any days the work place is closed by the chief administrator.
  • Untimeliness – Any claim by the employer that the grievance was not filed on time must be asserted before level two.

The grievance procedure was significantly shortened. Three steps were removed from the education employee process: the informal conference, the immediate supervisor, and the hearing before the board of education. We also kept the rights for employees to be represented in meetings that could lead to discipline and we strengthened the default provision for employees to prevail when the employer fails to meet their timeline.

Education Employees Liability Plan:

Questions and Answers

About Professional Liability Insurance for the 2014-2015 Program Year

Q: What is the EEL Program?

A: The NEA Educators Employment Liability (EEL) Program is a professional liability insurance program that is provided by NEA as a benefit of membership and is administered and underwritten by Lexington Insurance Company.

Q: What does the EEL Program cover?

A: Educators’ Liability Benefit – Payment of the legal costs of defending civil proceedings (other than proceedings concerning Civil Rights) brought against you in the course of work as an educator, and up to $1,000,000 national limit in damages assessed against you as a result of such proceedings. The policy provides up to $300,000 national limit worth of defense, settlements or judgments and other supplementary payments for proceedings concerning Civil Rights as well as a $5,000 sub-limit for defense on Mold related claims. Coverage of legal defense costs are limited to $3,000,000 per member per occurrence not to include any civil right issues or civil rights claims and there is a $9,000,000 per occurrence aggregate for all claims, not to include any civil right issues or civil rights claims. o° Attorney Fees for the Defense of Criminal Proceedings – reimbursements for attorney fees and other legal costs up to $35,000 if you are charged with violating a criminal statute in the course of your employment as an educator, and you are exonerated from these charges. ° Bail Bond – Reimbursement up to $1,000 of bail bond premium if you must post a bond as a result of an occurrence arising out of your employment as an educator. (The insurance company is not obligated to furnish the bond.) ° Assault-Related Personal Property Benefit – Payment of up to $500 for damage to your personal property when caused by an assault upon you in the course of your employment. (Vehicles and school property are excluded.)

Q: Why do I need liability coverage?

A: In your work as an educator you are frequently exposed to situations that may give rise to legal actions and which can involve your personal liability. If a student or a student’s parents file suit against you, the EEL program will provide you with insurance protection for the vast majority of cases. The program also reimburses you for damage to your personal property in assault-related incidents.

Q: What is an “occurrence” policy?

A: The EEL policy covers claims arising out of your covered acts which occur during the contract period, no matter when the claim is later made.

Q: How do I obtain coverage?

A: If you are a NEA active, educational support, life, student, substitute or retired member who is employed by an educational unit, you are automatically covered by the EEL program.

Q: Who pays the cost of the EEL program?

A: The entire premium for the program is paid by the NEA.

Q: Are some activities excluded from coverage?

A: Yes. Certain activities which NEA members perform are excluded. The following is a summary of some of the major activities that are excluded from coverage under the EEL program. For further detail, please consult your Certificate of Insurance brochure. These brochures are available from any WVEA office.

Excluded Activities Include:

1. Rendering, teaching or supervising medical services, except the following are covered:

  • (a) first-aid and regular nursing services rendered by a school nurse, or rendered by a certified health aide under the supervision of a school nurse,
  • (b) physical, occupational or psychological therapy or treatment rendered by an appropriately licensed or certified practitioner,
  • (c) the administration of oral prescription medicine to a student at the express request of his or her supervisor or at the written request of a student’s parents,
  • (d) emergency first-aid services when a school nurse or other medically trainer person is not readily available, and
  • (e) health care services provided to a student who is designated disabled under the Individuals with Disabilities in Education Act when expressly required by the employer and approved in writing by a student’s parents.

2. Operating vehicles. (Note: Driver training instructors are covered while riding as passengers, and vocational education instructors are covered for their activities during school shop classes. In addition, coverage is provided for the loading and unloading of school buses.)

3. Selling or distributing products, including food and beverages. (Note: Home economics teachers are covered for their classroom and laboratory teaching activities and for the sale of products prepared in the classroom. Cafeteria workers are covered for their food preparation and distribution activities.)

4. Law enforcement activities, except for those of a security guard.

5. Using or supervising the use of firearms, except where this activity involves the use of physical restraint in defending yourself or school property.

Q: Is the EEL Program limited to incidents that occur in buildings or on school grounds?

A: No. The program provides coverage for educational employment activities on and off school grounds including, for example, school sponsored athletic events, laboratory experiments, shop training, field trips in the U.S. and abroad, and after school clubs. Educational employment activities are those duties that you perform pursuant to the express or implied terms of your employment for an educational unit.

Q: Does the EEL Program cover criminal cases?

A: Yes. Attorney fees and court costs up to the maximum of $35,000 will be reimbursed when the costs are incurred in the defense of a criminal proceeding arising out of your educational activities. In most cases, you will be reimbursed only if the proceeding is dismissed or you are exonerated. If, however, the proceeding arises out of an incident involving the administration of corporal punishment, the program will provide reimbursement, regardless of the outcome.

Q: Does the EEL Program cover civil rights cases?

A: Yes. Defense, settlements or judgments and court costs up to a maximum of $300,000 will be provided when incurred in the defense of an action arising out of your educational employment activities and alleging a violation of another person’s civil rights.

Q: Does the EEL Program cover cases arising out of the discharge or layoff of a member or involving other “jobs rights” issues?

A: No. Another NEA sponsored program, the Kate Frank DuShane Unified Legal Services Program, provides coverage for these types of cases.

Q: Is the EEL Program “excess” to other insurance coverage which might be available to me?

A: Yes. “Excess” is a general insurance term that means insurance benefits become available to you only when other sources of insurance are exhausted. For example, if your school district provides professional liability coverage for you in some areas, as does the EEL program, the EEL program would not provide benefits until the school district’s coverage ran out.

Q: How do I make a claim for benefits?

A: If you are involved in any situation which you believe is covered by the EEL program, notify your Organizational Development Specialist (ODS) who will confirm your eligibility. If your ODS is not immediately available send a copy of any legal documents and a brief description of the occurrence to: Andy Katz, General Counsel West Virginia Education Association, 1558 Quarrier Street, Charleston, WV 25311.

Attorney Referral Program:

The WVEA/NEA Attorney Referral Program is a result of the group purchasing power of the over 3.2 million NEA members throughout the country. It provides you with free consultation (up to 30 minutes twice a year) with one of the Referral Program attorneys, and for considerably reduced rates for legal services you might need.

Who is eligible?

All active, life, education support or retired NEA members and, at the request of the member, his or her spouse and dependent children.

What are the services?

Each eligible member is entitled to two free consultation sessions of up to 30 minutes each on a legal topic the is qualified affecting an eligible participant (except income tax preparation) during each program year.

If a consultation leads to follow-up legal services of at least one billable hour, or equivalent services at a flat fee, it will not be counted as one of the consultations to which you are entitled that year.

If you decide to use the services of a Referral Plan attorney, the attorney’s regular fees will be discounted 30 percent if the problem falls into one of the following “core areas” and the attorney has indicated he/she is qualified in the area:

Real Estate– purchase or sale of property for residential purposes, disputes with landlords, property line disputes, problems with zoning laws or land use regulations.

Wills and Estates– preparation of wills, assistance with estate planning, representation of a member who is named executor or administrator of an estate, guardianship proceedings.

Domestic Relations– representation in proceedings for annulment, divorce, separation, alimony, custody, child support, guardianship, adoption, paternity and name change.

Consumer Protection– disputes with creditors or finance agencies, proceedings for garnishments and attachments, disputes with retailers concerning defective merchandise.

Traffic Violations– defense of charges of operating under the influence, reckless driving, or other offenses involving potential loss of license, financial liability in excess of $50, or jail sentence.

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