Questions and Answers/Faculty Employment:  Some Essential Concepts

 
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FACULTY EMPLOYMENT:  SOME ESSENTIAL CONCEPTS

June 16, 2004

Susan Smith

Temple University

Philadelphia , PA

 

I.          The Relationship Begins:  Appointment

             A.        Searches

                         1.         Position Description  

a.         Develop unambiguous written statement of the job to be performed.  Detailed statement:  

1)         Limits applicant pool to those potentially qualified;  

2)         Gives committee solid bases from which to assess candidates; and  

3)         Provides support later for critical decision-making (e.g., for obtaining reference information)  

b.         State essential details of position, e.g., whether position is tenure track.     

                           2.         Search Committee  

a.         Convene search committee, at least, for tenure-track positions.  

b.         Among members, consider including administrators, staff and students in addition to including faculty.  

c.         Consider criteria for eligibility for committee membership, including discipline-specific experience, prior committee work, availability to serve in light of other responsibilities, and longevity at institution.

d.         Train committee members on recruitment and selection, including acceptable inquiries of applicants,[1] institutional policies and procedures that might affect recruitment and selection, resources available to applicants who request additional information, review criteria, and timetable for decision-making.   

e.         Standardize personal interview questions/areas of inquiry for each position.  

                        3.         Affirmative Action / Seeking Diversity  

a.         Consider media sources in which to advertise positions given interest in reaching out to, for example, women and persons of color.  

b.         Contact professional associations for lists of members interested in higher education jobs and/or to offer job posting.  

c.         Consider advertising for adjunct and/or part-time positions to increase chances of attracting non-traditional candidates.  

d.         For case law related to affirmative action plans in hiring, see Johnson v. Transportation Agency, 480 U.S. 616 (1987), United Steelworkers v. Weber, 443 U.S. 193 (1979), McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), and their progeny.[2]  

                        4.         Reference Checks  

a.         Avoid claims of discrimination by seeking only job-related information  

b.         Avoid claims of invasion of privacy by having candidate sign waiver and release before committee contacts references.

B.        Offer and Acceptance  

                        1.         Recommended Contents of Offer Letter  

                                    a.         Name of addressee;  

                                    b.         Date of letter;  

                                    c.         Proposed title;  

d.         School/College/Department to which individual will be appointed;                                   

                                    e.         Salary and fringe benefits;  

f.          Other financial incidents of appointment (e.g., research start-up money, moving expenses);  

                                    g.         Type of appointment (whether tenure eligible);  

                                    h.         Term of appointment;  

i.          Number of years toward mandatory tenure consideration, if applicable, or alternatively, number of years of service to institution;           

j.          Description of responsibilities, including workload expectations;  

k.         Reference to employment policies with specific reference to patent and invention policy;  

l.          Reservation of superior’s right to reassign or cancel duties;  

m.        Requirement to demonstrate citizenship and complete I-9 form within three days of date on which employment begins; and  

n.         Date by which letter must be countersigned and returned.

2.         Additional Items to Consider Incorporating into Offer Letter  

a.         Representation that applicant’s professional license is valid and that applicant is and has been a member in good standing of professional licensing agencies and funding agencies;  

b.         Promise to make immediate disclosure if professional licensure is threatened at any time in future;  

c.         Disclosure of prior conviction of felonies;  

d.         Promise to make immediate disclosure if criminal investigation occurs in future;  

e.         Tenure policy and procedures, if applicable, stating that policy is exclusive and that it cannot be altered or modified by written or verbal statements; and  

f.          N.b.  Consider carefully the full import of any documents incorporated by reference.

                         3.         Acceptance  

a.         Countersignature  

·        Recommended legend:  “I have reviewed and understand the terms and conditions of employment contained in this letter, and by my signature below, agree to be bound by them.”  

b.         Agreement to assign patents  

·        Recommended legend to immediately precede countersignature:  “By signing this letter, I agree to all of those terms including, but not limited, the requirement of assigning certain patent and other rights to College/University.”   

4.         Hiring Foreign Nationals  

·        See NACUA Outline “Hiring Foreign Nationals as Faculty – The Usual Progression”, Thomas J. Arkell, March 21-23 (http://www.nacua.org/outline/docs/xi_faculty/xi-02-03-20.doc).

II.          The Relationship Progresses:  Promotion and Tenure  

            A.        Setting the Ground Rules  

·        The relationship between the institution and the individual is and will continue to be governed by:  

1.         University policies (including but not limited to those in the faculty handbook);  

2.         Collective bargaining agreements;  

3.         Employment agreements;  

4.         State law; and  

5.         Constitutional law.  

            B.        Non-tenure track v. tenure track  

                        1.         Non-tenure track  

a.         Often a limit on total number of years one can serve as full-time, non-tenure track faculty;  

b.         Often positions reserved for those with narrow offerings to the institution (e.g., just teaching), less than terminal degrees, part-time or adjunct availability.  

                        2.         Tenure track  

a.         An agreement between institution and individual to continuously employ a faculty member, subject to termination only for just cause, financial exigency or program discontinuance.  

b.         Pre-tenure procedures must be applied fairly and consistently.  

·        See McDonnell Douglas Corp. v. Green, 411 US 792 (1973), and its progeny for judicial discussion of standards and burdens of poof in claims of discrimination or retaliation in tenure process.

c.         Tenure is a contract; therefore understanding of the parties prevails.  

1)         “Understanding of the parties” is derived from policies, procedures, and practices.  

2)         Occasionally, tenure can be defined for publics by state statute or regulation.  

            d.         Conduct periodic, interim reviews prior to grant of tenure:  

1)         Make sure reviews are standardized, thorough, and candid;  

2)         Interim reviews should include specific, detailed areas that require improvement before the next scheduled review; and  

3)         At the earliest possible date, consider not renewing candidates who are unlikely to obtain tenure.  

            C.        Promotion and Tenure Processes  

                        1.         Different outcomes, similar considerations.  

2.         Criteria for both often requires demonstrable productivity in teaching, research or scholarship and service.  

            a.         Many also include collegiality as a criterion.  

            b.         Amount of weight placed on each criterion should be clear.  

                        3.         Standards  

a.         Some include “excellence”, “high achievement”, and “academic potential”.

b.         Some include collegiality.  

4.         Details of Process  

a.         Regularize, standardize procedures so that consistency can readily be maintained by those involved in process.  

b.         Guidelines should be set out in handbook and/or in promotion and tenure guidelines.  

c.         Similarly situated candidates should be given identical process.   

d.         Affirmatively disclaim “de facto” tenure, stating that tenure can only be granted by an affirmative act, and never by default or failure for the institution to act.  

                        5.         Description of Process  

a.         State what materials must be submitted by candidate and timetable for their submission.  

b.         State which levels review tenure application, in what order.  

                                    c.         State task of reviewers at each level.  

                                    d.         State applicant’s access to reviews, once completed.  

e.         State applicant’s opportunity for input into process (e.g., rebuttal to negative opinions).                       

III.         The Relationship Comes to an End:  Resignation, Retirement, and Involuntary Discharge  

            A.        Voluntary Termination  

                        1.         Resignation  

a.         Process for resignation typically is governed by institutional policy.  

b.         Look to institutional policy for benefits following resignation (e.g., bestowal of emeritus status, continuation of certain benefits and privileges of faculty).        

                        2.         Retirement  

                                    a.         Early Retirement Incentive Plans (“ERIPs”) [3]  

1)         Package of incentives may include cash, additional retirement contributions and retiree health coverage.  

2)         ERIPs typically are restricted to a designated group or are restricted by eligibility standards.  

3)         Some ERIPs are available for enrollment only for a window of time, or are ongoing.   

4)         Important considerations:  

a)         Application of Older Workers Benefit Protection Act (“OWBPA”) as it affected the Age Discrimination in Employment Act (“ADEA”) by:  

(1)       extending age discrimination coverage to employee benefits; and  

(2)       establishing strict statutory standards for employee waivers of age discrimination plans.  

b)         State statutes protecting older workers;  

c)         Internal Revenue Code’s prohibitions against discrimination (Section 403(b)(12)), cessation of accruals (Section 401(a)(4)), and IRS rules pertaining to certain forms of nonqualified deferred compensation (Section 457(f));  

d)         Application of the Employee Retirement Income Security Act of 1974 (“ERISA”) to private colleges and universities; and  

e)         Effect of the ERIP on contractual or common law employee rights.

            B.        Discipline / Involuntary Discharge                       

                        1.         Options Short of Discharge from Employment  

a.         Collective bargaining agreements, institutional policies and state law might affect institutional options short of discharge from employment.  Some to consider, though, are:  

1)         Warning or reprimand;  

2)         Public censure;  

3)         Departmental transfer;  

4)         Limited or no salary increase;  

5)         Salary reduction;  

6)         Restitution or fines;  

7)         Immediate suspension;  

8)         Unpaid disciplinary suspension;  

9)         Paid suspension;  

10)      Reduction in rank;  

11)      Altered teaching assignments;  

12)      Syallabus requirements;  

13)      Class monitoring;  

14)      Shadow sections;  

15)      Required apology; or  

16)      Mandatory counseling or workshops.[4] [5]

2.         Non-Renewal of pre-Tenure Contract  

a.         Be alert to time periods for giving faculty member notice of non-renewal, if required by institutional policy.  

b.         Consider substance of intermediate reviews in assessing reasonableness of faculty member’s expectation of continued employment.                       

                        3.         Discharge for cause  

a.         Discharge of Untenured Faculty  

1)         Typically, an untenured faculty member may be discharged from employment consistent with the terms of his/her contract; due process does not usually come into play.  

o       See Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) (recognizing in part that, although an untenured college professor may have “an abstract concern in being rehired”, that concern does not rise to level of having property interest requiring university to hold hearing prior to terminating professor).  

2)         An untenured professor may be able to show a claim of entitlement to job tenure from the totality of the circumstances, i.e., the number of years of service, unwritten practice in the university, implications drawn from the faculty handbook, and the manner of operation of the state officials and faculty members.   

o       See Perry v. Sinderman, 408 U.S. 593 (1972) (holding that proof of property interest would entitle professor to notice and opportunity to be heard but would not necessarily entitle professor to continued employment).

b.         Discharge of Tenured Faculty:  Usual Requirement of Adequate or Just Cause  

1)         Typically, an institution only can terminate tenured faculty for “just cause” or “adequate cause”.  

a)         Definition of “cause” in faculty context typically includes some or all of the following:  grave or gross misconduct, incompetence, neglect of duty, insubordination, and/or immoral or unethical conduct.  

b)         In her NACUA outline entitled “Faculty Misconduct, Discipline and Dismissal,” March 21-23, 2002 , Ann Franke suggests that institutions considering elaborating their definitions of cause by including the following:   

(1)       Dishonesty in teaching, service, or research or creative activity;  

(2)       Serious and deliberate personal or professional misconduct violating standards of professional conduct;  

(3)       Willful and material violation of the rights and freedoms of students, faculty, staff, or administrators;  

(4)       Conviction of a felony that substantially bears on the faculty member’s fitness to discharge his or her duties;  

(5)       Falsification or misrepresentation of professional credentials, employment record, or accomplishments; or  

(6)       Moral turpitude.  

             c)       For some representative court decisions discussing just cause in the             context of higher education (and many related topics) see Thomas             Hustole’s NACUA Outline “Governance, Tenure and Promotion, and             Faculty Employment Policies – Some Basic Advice for Drafting,             Interpretation, and Application,” prepared for NACUA’s 2001 New             Lawyers’ Workshop. 

c.         Discharge of Tenured Faculty from Publics:  Due Process Guaranteed by the U.S. Constitution  

1)         Because the definition of tenure provides for a property right in continued employment, before that property right can be taken away, constitutional due process rights attach in the case of public institutions.[6]  

a)         In a pre-termination setting, due process requires that a public employee receive “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”  Cleveland Bd. Of Educ. V. Loudermill, 470 U.S. 532, 546 (1985).  See Gilbert v. Homar, 520 U.S. 924 (1977).  

b)         Due process requires that tenure revocation not be arbitrary or capricious, nor legally impermissible (including for exercising one’s free speech).  Board of Regents v. Roth, 408 U.S. 564 (1972).  

c)         Opportunity to be heard must be real, not a sham or pretense.  See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 138 n.11 (1951); Levensetin v. Salafsky, 164 F.3d 345 (7th Cir. 1998).   

d)         For other cases that discuss the general standards of due process in a higher education context (usually in cases of tenure termination for cause or for budgetary reasons), see Levitt v. University of Texas, 759 F.2d 1224 (5th Cir. 1985), Kowtoniuk v. Quarles, 528 F.2d 1161 (4th Cir. 1975); Anapol v. University of Delaware, 412 F. Supp. 675 (D.Del. 1976); King v. University of Minnesota, 774 F.2d 224 (8th Cir. 1985).

 

e)         Due process can attach if a faculty member’s good name, reputation, honor or integrity is at stake and the institution’s actions foreclose an opportunity to take advantage of other employment opportunities.  Paul v. Davis , 424 U.S. 693 (1976).  

2)         Typically, procedural due process is thought to guarantee the right to notice of the charges and an opportunity to be heard.  These concepts include the rights to:  

                        (a)       be advised of the reason for termination;

 

(b)       be advised of the names and the nature of the testimony of witnesses;

 

(c)        have a meaningful opportunity to be heard within a reasonable time; and

 

(d)       have a hearing before a tribunal that possesses some academic expertise and apparent impartiality toward the charges.

 

o        See Levitt v. University of Texas , 759 F.2d 1224 (5th Cir. 1985); Kowtoniuk v. Quarles, 528 F.2d 1161 (4th Cir. 1975); Chung v. Park, 514 F.2d 382 (3rd Cir. 1975); Anapol v. University of Delaware , 412 F. Supp. 675 (D. Del. 1976); King v. University of Minnesota , 774 F.2d 224 (8th Cir. 1985).

 

3)         Substantive due process entitles a tenured faculty member to:

 

(a)       demonstrate that employment action was the result of discriminatory animus or other impermissible basis; and

 

(b)       show that underlying rationale for termination was arbitrary and capricious.                                            


d.         Discharge of Tenured Faculty from Privates:  Due Process May be Conveyed by Collective Bargaining Agreement, Faculty Handbook and/or Institutional Policies           

1)         State law, institutional policy and practice guide the proceedings.  

a)         Most such laws and policies provide similarly rigorous process as that afforded by publics.   

b)         State contract law rather than federal constitutional law often governs employment disputes at private institutions.  Under state contract law, a faculty handbook may operate as an enforceable contract.  E.g. McConnell v. Howard Univ., 818 F.2d 58 (D.C.Cir. 1987).   

c)         Due process may attach if the non-renewal is accompanied by a charge of dishonesty such that the professor is stigmatized and his liberty interest is implicated.  Board of Regents v. Roth, 408 U.S. 564, 573-576 (1972).   

2)         Typical procedural requirements:[7]  

a)         Written statement of the basis for the decision and the manner in which it was made;  

b)         Disclosure to faculty member of the information relied on by the decision makers; and  

c)         Opportunity to respond.  

4.         Discharge due to Financial Exigency or Programmatic Change or Elimination           

a.         Typical procedural requirements:[8]  

1)         Prior notice;  

2)         Declaration of financial exigency;  

3)         Specific appeal procedure; and  

4)         Placement or priority consideration elsewhere in the institution.  

b.         Courts typically will defer to institution with written procedures for terminating faculty upon existence of financial exigency or programmatic change or elimination.  

1)         Courts might scrutinize adherence to process, but likely will defer to institution’s substantive reasons for declaring financial exigency or need for programmatic change or elimination.  

2)         Institution’s declaration of financial exigency or need for programmatic change or elimination must be “bona fide”, and not merely pretextual.  Factors to determine whether declaration is bona fide include:  

            a)         Adequacy of institution’s operating funds;  

            b)         Overall financial condition of institution;  

c)         Use of other cost-cutting or money-saving measures before termination, such as reductions in non-tenured staff and elimination of nonessential programs and travel; and  

d)         Efforts to find alternative employment for faculty member.[9]  

3)         Selection of individual faculty member for termination also must be bona fide as demonstrated by use of applicable, uniform selection procedures.          



[1] For a guide to legally permissible interview questions, see NACUA Outline “Working With Faculty Search Committees,” Kristine Legler Kaplan, Minnesota State Colleges and Universities, March 21-23, 2002, Appendix A.  
[2]  See also NACUA Outline “Affirmative Action in Faculty Hiring”, Victor Bolden, March 21-23, 2002   (http://www.nacua.org/outline/docs/x_discrimination/x_02_03_2.doc).  

[3] For a good discussion of early retirement incentive programs, see (1) NACUA Outline “Designing and Implementing Effective Faculty Early Retirement Programs,” Randolph M. Goodman, March 3-5, 2004, (2) NACUA Outline “Faculty Retirement Incentives – ERISA and Tax Issues,” David L. Raish, Ropes & Gray, May 2, 2000 (http://www.nacua.org/outline/docs/xi_faculty/xi-00-06-6.doc), and (3) NACUA Outline “Early Retirement Incentive Plans for Faculty:  ADEA Issues,” Thomas J. Flygare, Flygare, Schwarz & Closson, June 2000 (http://www.nacua.org/outline/docs/xi_faculty/xi-00-06-7.doc).  

[4] For a detailed discussion of each of these items and relevant case law, see NACUA Outline “Faculty Misconduct, Discipline and Dismissal, Ann H. Franke, March 21-23, 2002 .  

[5] For Michigan State University ’s policy entitled “Policy and Procedure for Implementing Disciplinary Action where Dismissal is not Sought,” see http://www.hr.msu.edu/HRsite/Documents/Faculty/Handbooks/Faculty/AcademicPersonnelPolicies/iv-disciplinary.htm.

 

[6] See NACUA Outline “Governance, Tenure and Promotion, and Faculty Employment Policies – Some Basic Advice for Drafting, Interpretation, and Application,” Thomas P. Hustoles, Miller, Canfield, Paddock and Stone, October 2001.  This outline, prepared for NACUA’s 2001 New Lawyers’ Workshop, provides an excellent resources on tenure and related issues.  See also NACUA outline “Administration of Tenure Policies,” Martha Hartle Munsch, Joshua David Verdi, Reed Smith Shaw & McClay, June 2000.  

[7] For a detailed discussion of each of these items and relevant case law, see NACUA Outline “Judicial Evaluation of Tenure Termination Arising from Financial Exigency, Program Discontinuance, or Affiliation,” Ellen M. Babbitt, Babbitt & Melton, March 21-23, 2002.  

[8] For a detailed discussion of each of these items and relevant case law, see NACUA Outline “Judicial Evaluation of Tenure Termination Arising from Financial Exigency, Program Discontinuance, or Affiliation,” Ellen M. Babbitt, Babbitt & Melton, March 21-23, 2002.  

[9] For a detailed list of cases in which bona fide financial exigencies were or were not found to exist, see NACUA Outline “Rightsizing, Restructuring and Reductions in Force,” Matthew D. Keiser, Arnold & Porter.