Contracts and at-will employment

Which type of employee are you, and why does it matter?


Public education is unusual because many, though not all, employees are employed under contracts. Employment under a contract is significant because:
  • A contract creates legally enforceable rights and obligations on both employee and employer. In many cases, these rights and obligations cannot be changed unless both parties agree.
  • A contract’s terms define those rights and obligations, often by referencing local policies that are thereby “incorporated” into the contract. The most significant of these terms govern what employees will do, when they will work, what compensation they will receive, and when and how they can be terminated.
“At-will” employment simply means no employment contract governs the employment, particularly when and how the employment can be terminated. At-will employment is far more common in the general workforce, but many public school personnel are also employed at-will, such as most paraprofessionals and the classified, custodial and cafeteria staff. Without a contract, the terms of employment, including assignments, work hours and compensation, can usually be changed at any time.
 
At-will employment also means that the employee is free to quit any time for any reason—and the employer is free to terminate the employee for any reason not specifically prohibited by law, such as illegal discrimination. (A teacher with a contract cannot resign mid-year without the district agreeing to release her or her proving she has a good reason for leaving, such as a health issue, without risking a possible sanction to her teaching certificate. This is because her contract puts restrictions on her just as it does on the district.) 

Under the Texas Education Code, you are legally entitled to a contract if you are employed as a:
  • Classroom teacher
  • Counselor
  • Principal
  • Librarian
  • Nurse
  • Full-time professional employee required by the state or school district to hold a certificate from the State Board for Educator Certification
All other employees are entitled to contracts only at the discretion of local districts.
1. Probationary contracts
  • Must be given during the first year of employment in public education.
  • May be given in the first year of employment by a school district, unless the person is returning to a district after having been previously employed by that district for two consecutive years.
  • May not extend beyond one year for a person who has been employed as a teacher in public education for at least five of the eight years immediately preceding employment with the district. Otherwise, the probationary period may last up to three years or, in some circumstances, four years.
  • Can be terminated at the end of the contract period by giving the teacher proper notice of termination. No reasons or hearing are required for termination at the end of probationary contracts.
  • Practically give teachers all of the same rights and responsibilities as term and continuing contracts, with the exception of due process at the end of the contract period.
2. Term contracts
  • Run for a specified length of time of no more than five years.
  • Are automatically renewed unless the school board votes to "nonrenew" the contract and gives the educator required notice by the statutory deadline.
  • May be terminated during the school year only for good cause, or the teacher may be suspended without pay only for good cause.
3. Continuing contracts
  • Continue in effect from year to year until the teacher resigns, retires, is terminated or released from employment, or is returned to probationary status by the district for good cause.
High-ranking administrators who are not certified and therefore not entitled to a contract by law—such as a transportation director or finance director—are often given employment contracts. Because the Texas Education Code does not govern these contracts, their terms can vary widely and might be very different from the probationary, term and continuing contracts described here.
  • Can I be reassigned against my will?
Your contract will likely include a clause that gives the district the right to reassign you, but it will also include a term stating your professional capacity, such as “certified classroom teacher” or “administrator.” The professional capacity term defines how much latitude a district has to reassign you to a new position. Specific work assignments are only protected by contract if the professional capacity is that specific.

For example: If your contract says that you are employed as a “certified classroom teacher,” you do not have a contractual right to a specific teaching assignment, but you do have a right to a teaching position for which you are certified. If your contract says “administrator,” you may be reassigned from principal to assistant principal, because both are “administrator” positions, but you could not be reassigned to a teaching position.  

Note that a district may not be able to change an educator’s compensation even when the district can reassign them to a lower-paying position.

For example: A contract employee with the professional capacity of “administrator” may usually be reassigned from principal to assistant principal at any time, but in many cases the district would have to continue compensating that employee as a principal, at least for a limited time.
 
  • Can I be required to work after hours or on non-work days? Can I be required to perform a task I don’t want to do or cannot do?
Most contracts give districts the leeway to assign additional duties, such as attending after-hours meetings, lunch or bus duty, ticket-taking at athletic events, or tutoring. The education commissioner has ruled that duties are valid additional duties if they:
  • Are within the general expectations of the teaching profession or known local expectations; and
  • Fall within the time period covered by the contract.
Although the law generally gives the district the right to require these additional duties, an individual educator may also have a legally enforceable excuse not to perform a particular duty. For example, an educator might be able to miss required after-hours meetings for ongoing medical treatment, such as dialysis. There might also be questions as to whether a district can require duty on a non-duty day, such as Saturday. These types of individual issues make a general answer on what duties can be required impossible, so an educator should seek legal advice. There are required steps to take in these cases, so it is important that any educator considering refusal of a duty seek advice immediately. 
 
  • How do I know how much I will make?
Although a contract creates the educator’s legal right to compensation, very few contracts state a specific salary in the contract itself. Most contracts reference the district’s local salary schedule and by doing so, incorporate that schedule into the contract, just as if the full schedule were actually written into the contract itself. This means that the educator has a legal right, through the contract, to whatever the local salary schedule provides.
 
  • Can my salary be reduced?
State law provides that a classroom teacher, full-time librarian, full-time nurse or full-time counselor certified by the State Board for Educator Certification must make at least the state-mandated minimum monthly salary. Most districts choose to pay more than the minimum salary, though, and because the district has voluntarily agreed to pay additional compensation, it can, in many circumstances, reduce that added compensation. In this case, timing is everything.

Because a contract exists, districts are generally prohibited from lowering compensation tied to the contract. Practically, this means that a district cannot generally reduce compensation during a school year. However, a district can usually reduce an educator’s compensation for an upcoming school year if an educator is given individual and specific notice of the reduction at least 45 calendar days before the first instructional day of the school year. The notice must be specific enough to give the educator the chance to make an informed decision as to whether to return for the upcoming year, so something like “we might be cutting salaries next year” would not be sufficient, while “your salary will be reduced $1,500 next year” probably would be.   

An exception to the usual prohibition on reducing compensation during the school year exists when a district finds that it has mistakenly paid an educator more than it was supposed to under district policy. In this situation, a district can usually not only lower the educator’s compensation to the amount provided under district policy, but also it can often force the educator to pay back the amount overpaid. Because Texas courts have forced educators to repay these overpayments and have even forced educators to pay district legal expenses, it is in educators’ interests to investigate immediately if they have reason to think they are being overpaid. The greater the amount becomes, the more difficult it will be to pay back.
 
  • Can my work hours or days be changed?
Most contracts do not state specific work dates or hours, instead referring to and incorporating the local board-adopted calendar and district policy. Most contracts also have language providing that the days and hours can be changed. However, even if a contract says that changes can be made, not all changes are allowable. There is no bright line as to when a change in working conditions is “too big” to make. It is unlikely that the district could add 20 additional workdays to the calendar. It is unlikely that the district could add an hour to the daily work schedule. But whether the district can add three Saturday mornings of tutoring or a weekly after-hours department meeting is a more difficult question to answer.

It is understood that, like compensation, a district is generally free to make changes to work dates and hours for the upcoming school year, as long as it provides the educator with notice of the change at least 45 calendar days before the first instructional day of the school year.
 
  • Are all of my assignments covered under my contract?
To understand what assignments are covered under your contract, it is necessary to understand the different categories of assignments and how the law treats these categories differently:

Primary duties (what the contract specifically states that you do, like “classroom teacher” or “administrator” or “teacher-coach”) are certainly covered by your contract.

Additional duties are minor duties related to the primary duty that you are required to perform under the contract for no additional compensation. Additional duties might include attending meetings, tutoring and attending some after-hours events.

Supplemental duties are likely noted in your contract as a possible assignment. Supplemental duties are bigger and more time-consuming than additional duties. The most common supplemental duty is coaching, though coaching may also be a “primary duty” instead (as noted above) if it is specifically mentioned in your contract. Most contracts state that supplemental duties and payment for them are not covered by the contract. When and how a district can actually stop paying compensation related to a supplemental duty is a complex area of the law, so if you are told that your district intends to stop paying a stipend, get legal advice immediately. You might also have a separate contract for supplemental duties, creating different rights and obligations on both you and the district.   
 
  • Will my contract be the same each year?
The district can legally change many of your contract’s terms each time you are required to sign a new one, but some terms cannot be changed without your agreement. Because terms can change, always read your new contract rather than assuming it’s the same as your last one. The most important parts to review are the employment position listed on the contract and the type of contract—whether it is a probationary, term or continuing contract, though you should be familiar with all of your contract’s terms because you are agreeing to be legally bound by them. You should also read it immediately because educators can waive legal rights if they do not act quickly in most situations.
 
  • Can I be returned to a probationary contract?
If you currently have a term or continuing contract, you can be returned to a probationary contract only if you agree in writing after receiving written notice that your district has proposed or intends to propose your termination or nonrenewal. If the board has not yet voted to propose termination or nonrenewal, you must be given at least three days to consider such a proposal. In either case, if you agree to accept the probationary contract, you will serve a new probationary period as if employed by the district for the first time. If you do not agree to accept the probationary contract, then the district can proceed with termination or nonrenewal.
 
Any educator can be returned to a probationary contract for the first year of employment at a new school district.
At-will employment is the term used for employment without a contract. Most workers in Texas work at-will; employment contracts are by far the exception, not the rule, in the workplace. Because certified educators make up such a large portion of a district’s workforce, and they are almost always employed under a contract, it’s often forgotten that many public school employees do not have a contract.

Technically, the term “at-will” refers specifically to employment where neither the employer nor the employee has to prove a good reason to end the relationship—either by either the employee’s resignation or the employer’s termination of the employee. This is both the defining and most significant aspect of at-will employment. Although rare, it is possible to have an at-will contract where the contract governs certain things, such as work hours and compensation, but also says both parties are free to terminate it at any time.

Terminations
It’s common to assume that an employer will not terminate an employee unless the employer has a good reason to do so—either economic (a layoff) or personal (an employee’s misconduct). Although this is certainly common practice, it is not legally required of any employer, including a school district. As Texas courts have clearly and succinctly put it for decades, an at-will employee can be terminated “for a good reason, a bad reason or no reason at all.”
 
The only limitation: Termination can’t be due to a provably illegal reason, such as discrimination based on race, religion, gender or any other illegal factor. That term “provable” is significant. Because an employer can legally terminate an employee for anything, including both a bad reason or no reason, the employee must prove that there was a reason and that the reason was illegal—often a very difficult task.
 
Resignations
Unlike a contract employee, an at-will employee is free to resign at any time for any reason.

Although giving “two-weeks notice” is customary and considered good professional practice, there is nothing that a district can do to an at-will employee saying “I quit” at lunch and going home, never to return—at least nothing besides a likely poor reference. 
 
Due process
Although a district can terminate an at-will public school employee without warning and for no reason or any reason that is not itself illegal, the employee does have the right to contest the decision through a grievance




The legal information provided on this website is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our online contact form