Teacher Negotiations: Don’t Forget the Tenure Act!

As schools enter contract negotiations with unions representing professional staff, board negotiators must consider the Michigan Teachers’ Tenure Act (the “Act”) before agreeing to terms that implicate teacher evaluation, discipline, placement, and layoff/recall systems. For example, a teacher placement or layoff/recall system that prioritizes tenured teachers over probationary teachers violates Article II, Section 2a of the Act, which states: “A probationary teacher who is rated effective . . . on his or her most recent annual performance evaluation under Section 1249 of the Revised School Code . . . is not subject to being displaced by a teacher on continuing tenure solely because the other teacher has continuing tenure.”

The Act was amended in 2011 to address concerns about seniority-based teacher employment practices affecting student growth. The 2011 amendments established, among other things, the following standards:

  • Allowing schools to dismiss a probationary teacher “at any time.”
  • Requiring that the teacher’s annual performance evaluation include multiple classroom observations and repealing the Act’s former requirement that observations occur at least 60 days apart.
  • Allowing the board to determine the form and number of classroom observations, consistent with the Revised School Code, “in consultation with teachers and school administrators.”
  • Repealing the “reasonable and just cause” discipline standard for tenured teacher demotion and discharge and replacing it with the “not arbitrary or capricious” standard.
  • Allowing the board to place a teacher’s salary in escrow during a suspension for tenure proceedings if related criminal charges are pending. Before doing so, the board must give the teacher notice of the charges, an explanation of the employer’s evidence, and an opportunity to respond.
  • Prohibiting placement or layoff/recall systems for teachers based solely on tenure status if a probationary teacher is rated “effective” or higher.

Those standards remain in effect despite the recent legislative changes to the Public Employment Relations Act, the Revised School Code, and the Tenure Act.

Contract terms that violate the Act’s mandates might create a viable cause of action under the Act regardless of the contrary bargaining agreement terms. Accordingly, labor negotiators must carefully analyze proposals that implicate the Act or risk subjecting the school to potentially significant legal exposure.