There are often many signs available to you when you need to let a teacher go. Parent complaints. Faculty complaints. Student evaluations. Students not properly prepared for the next grade. And so on. It can become apparent early in the teacher’s first year or after many years of service. Bizarrely, the agony often continues on for all parties long after someone should have called it a day. The employee is often either unhappy or not suited for the position. The school is not happy with the employee’s performance and the students are usually bearing the brunt of the fallout.

So how does a school separate from an employee?

Get Your House in Order

Separating from an employee for any reason is more difficult if your school does not have some very basic building blocks in place. All of these pieces are designed with three simple goals in mind.

There are no surprises for anyone through the process. The employee understands what is expected and how the school may act if performance does not reach expectations. The school leadership knows what steps supervisors will follow, and there are points at which the school leadership will be apprised of potential negative performances.
The employees, school leadership, board members, and others feel reasonably confident that employees will be treated fairly and consistently throughout the process.
The story of ineffectiveness is reasonably easy to illustrate to any third party who may need to revisit it, including future supervisors, potential plaintiff’s attorneys, judges, or investigating agencies.

Human behavior being what it is, there is often ambiguity in whatever systems schools build and the fact patterns that result, but these building blocks help lessen that risk.

Performance Expectations

These do not have to be overly involved or detailed, but there should be a rudimentary set of expectations that the school has for each employee. These are often found in two places. The basic expectations such as timeliness, accountability, civility, etc., are found in the school’s employee handbook. The expectations that are tailored more to specific positions are found in the job descriptions. Many schools will have a “and such other tasks as assigned” portion of the job description. When this is the case, the school should ensure that the additional tasks are understood and, if they are standing year over year, should be included in the job description for the next year. The employee should accept these expectations in some capacity, often through a signed recognition.

Performance Evaluations

Eyes may be rolling at this one. It is notoriously difficult to evaluate teachers, particularly in the classroom. Therefore many schools get stuck or do not follow through on creating a good performance-evaluation system. Nevertheless, schools need to identify a rubric and stick with it. The evaluation should cover behaviors and obligations both in and outside the classroom as well as reasonably objective ways to measure or observe these points, if at all possible. More important, the performance check-ins should be done with regularity across the board, preferably more than once a year. This allows both the school and employees thoughtful opportunities to have conversations and course corrections throughout the year. It also ensures that there are no surprises in the event that it is time to end the employment.

An Improvement Plan and Separation Rubric

The school and the employees should know what the potential options are for employees who are not performing at the expected level. Often these options are not set in stone, to give the school the flexibility to let someone go immediately if necessary. However, laying out the option for an improvement plan or other similar approaches help supervisors within the school structure, as well as employees who find themselves on such a plan, understand the ramifications and expectations. Schools vary in their approaches to having true improvement plans or simply escalating feedback and input. It is important to bear in mind that these kinds of plans should only be entered into if there is a reasonable chance that the individual can actually perform the job. Otherwise, the plan becomes synonymous with eventual termination and does not often serve the end the school is really looking for — to get the employee back on track.

An example of such a plan looks like this:

All employees are employed at will, and the School may choose to terminate the employment relationship at any time, for any lawful reason or no reason. Employees may be terminated for any reason, including poor performance, without notice of the poor performance or an opportunity to improve. However, in some circumstances at the supervisor’s discretion, the supervisor may take steps to counsel the employee and help the individual improve his/her performance to a satisfactory level, and may, for example:

Notify the employee that his/her performance is below the School’s standards and, if not improved to a satisfactory level, could result in termination of employment.
Work with the employee to develop an improvement plan that may consist of selected key work assignments that, if completed satisfactorily, demonstrate that the employee can perform certain responsibilities of the job. Generally, the improvement plan will be executed over a 30-90 day period. The supervisor is the final authority on what should be included in the plan and the length of the evaluation period (no longer than 90 days). At the end of the period, the supervisor will evaluate the employee.
If the employee satisfactorily completes the assignments in the improvement plan, the supervisor and the employee will agree on performance objectives and expectations that reflect the total responsibilities of the position moving forward. The employee is expected to sustain a satisfactory level of performance against these performance objectives for the remainder of his/her employment with the School.
If the employee’s performance becomes unsatisfactory within a 12-month period, his/her employment with the School may be terminated without another opportunity to improve.
If the employee’s performance has not improved sufficiently, his/her employment with the School may be terminated.

The School is not obligated to undertake any or all of the above steps to assist an employee to improve unsatisfactory performance, and this policy does not alter the at-will nature of the employment relationship.

Documentation

Documenting employee performances helps all employees as well as new supervisors who need to get a picture of their employees over time. However, documentation is crucial when it comes to separating from an employee peacefully. A process of regularly annotating performance ensures that there are no surprises for the employee and that the school can illustrate through contemporaneous notes the trajectory of the employee’s performance. The resulting record can help objective eyes, including those within the school, understand where and when issues occurred and if the school has sufficient documentation to warrant a termination.

Your Lawyer Is Your Friend

Okay, friends do not usually bill you for their time, but open communications with your employment attorney are generally key to successful departures. She can help you build and review the above systems to ensure they suit your needs and our culture, and let you know where the pitfalls may be. She can also provide useful guidance when the school is thinking of letting someone go. Long conversations are not usually necessary early on, but your attorney can often help you think about the documentation you are collecting, as well as the performance improvement plans, employee feedback, and potential separation to ensure that you have the pieces in place that you may need in the event of a separation. She will look to see if you may inadvertently offer improvement plans to certain staff members, but not others, triggering potential discrimination claims. She may also help you see when a situation is not likely to improve or point out a risk you had not thought about, leading to an earlier separation. These might be 15-20 minute conversations, but they can save you hours later on.

Once these points are well established in your school, separations may still not be pleasant, but they will be more approachable and less likely to raise unexpected surprises. Now most separations will have a history behind them, including documentation of issues, conversations with the employee, an improvement plan that may or may have been met, and other elements of a paper trail . To the extent possible, everyone will have been treated similarly and fairly and the school leadership will have been kept informed along the way and reasonably determined that it is time to part ways with the employee. Your school attorney will have been involved early on, ensuring that the attorney/client privilege covers some communications and that an objective third party has reviewed the facts going forward.

Severance

Depending on the circumstances, the school may or may not offer the employee some kind of severance agreement. While it is tempting not to give a package or to take a stance on principle, bear in mind that terminating this employee may be one of the most stressful life events he or she will face. Terminations can make people act irrationally, often in anger against their former employer even if the employee was clearly failing to perform. Schools provide severance so that the employee has some funding for a transition, enabling the person to remain at least relatively calm, and to potentially stave off an unnecessary legal challenge. This is particularly true when the school’s documentation might be lacking in some way, if the employee is a longtime employee, or there are other extenuating circumstances. Typical severance packages contain:

Expectations for any further work or behavior on behalf of the employee. These are often provided when the situation does not call for an immediate termination and the employee will be finishing the school year;
A description of the severance in dollars;
Any “cash-out” of vacation or other leave;
Clarification on references, if any;
Other benefits that may be offered such as career counseling, resume review, continued tuition remission for children, recommendation, etc.;
Release of claims;
Confidentiality;
Benefits; and
Legal language relating to various nondiscrimination acts, unemployment, submission of the documents, etc.

Difficult Conversations

Once the school leadership has determined the severance package and worked with the school lawyer to finalize the terms and draft the agreement, it is time to have a conversation with the employee. It can be very helpful for the members of the school leadership team to “play out” the conversation that will take place. This strategy is particularly useful when the employee is not expecting the news or is prone to mercurial responses. While the school’s attorney will have his own guidance, standard points to keep in mind going into difficult conversations are:

At least two people should be in the conversation with the employee. This enables the school to have a clear recall of the conversation after it has happened and both people can make sure the conversation stays on track. One of these people is always the individual’s direct supervisor. The other person might be the human resources director, business officer, head of school, or other department head. Be aware that having many more than two people in the conversation can be daunting to the employee.
Be thoughtful and kind during the conversation. Helping an employee maintain dignity throughout the process from beginning to end is fundamental to respect for your staff.
Do not get bogged down in the details. The decision has been made and the conversation is to introduce that idea and lay out next steps. These conversations are not a time to rehash performance or issues. Examples may be given, but now is not the time to revisit specific events or to give the employee a feeling that he may be able to debate into staying. If the employee seems to be headed down that path, do not engage in it.
Do not let the employee make you angry during the course of the conversation. Now is the time to keep an eye on the “end-game” of the conversation and keep it moving forward.
Be clear about the offer on the table. You will need to get across what the school is offering, if anything, what the school expects from the employee, whether it is further performance or return of school property, and what will happen next and the anticipated timeline. Provide during the conversation, or as soon as possible, the written severance agreement and any other separation documents or benefits information.
Do not delay getting back to the employee with any information or documents. Understand that the person is in an emotional and vulnerable place, even if they put themselves there, and act accordingly.

Other Items

Technology and the 24/7 aspect of school life have made leaving a school job much more complicated than it used to be, and schools should have a termination list to ensure that all of the needed information and steps are taken. Some of these steps will occur before you terminate an employee. A list may include the following and more depending on the school:

Severance agreement, if any;
Notification to key staff for procedural purposes: human resources, accounting, benefits;
Access Notifications to key staff: systems administrator to ensure that nothing is destroyed before employee leaves and to turn off access at appropriate time; campus and building staff to limit campus access when appropriate;
Notification to school staff, parents, and board;
COBRA and other benefits notifications and forms;
Final payout of severance, vacation, and other leave;
Return of school property such as documents, laptops, key cards, keys, etc.;
Provision of passwords to any school owned/related social media, associations, etc.;
Exit Interview; and
Written permission form for any reference checks.

Now What?

After an employee has moved on, the school may still need to manage communications with staff and families. Ideally these communications are based on the message already determined by the school and the former employee. In some cases, the school does feel that the employee would be better suited in certain positions or would like to provide a reference for the individual. Schools should talk through these steps with the school’s attorney during the termination process. Finally, schools need to remember that it is normal for employees to occasionally not be a good fit for a school. Given the nurturing environment of schools, this process of moving an employee on can sometimes result in bad feelings or guilt. A new employee for the school and a new job for the former employee may be best for everyone in the long run, particularly the students.