Legal issues in early childhood 2
please read the following:
1. Essex (2011) Chapter 2
2. Article by Bruno (2009) attached to this question
Review the Administrative Guide of Religious Freedoms and discuss how you would ensure all of these freedoms were adhered to if you were the director of an early childhood institution. Which item do you believe may be the most difficult to implement or ensure? Why?
Initial post (350 words)
Legal & ethical issues in early childhood and school age programs
[emailprotected] (updated) Holly Elissa Bruno, MA, JD hollyelissabruno.com [emailprotected]
NB
Handout is prepared for educational purposes only & is not a substitute for consulting w/ your attorney.
LAWFUL PRACTICES & STANDARDS What can you do daily to prevent problems?
1. Lawful standards to measure your practices by: a) Be consistent, b) Follow written policies & procedures, c) Stay objective & act reasonably, d) Document & report facts, e) Do not discriminate vs. protected classes, f) Exercise Due Process (give notice of new policy & invite input-right to a hearing ).
2. Documentation: Just the facts, Mam (who, when, what, wherenot why). Avoid moral judgments, opinion, and commentary. Head start practice: If it isnt documented, it didnt happen. Keep it simple and concise.
3. Written policies & procedures. You dont have to be Shakespeare to write staff, parent handbooks, job descriptions and new procedures. Written, publicized policies, signed/initiated by the reader demonstrate that notice has been given.
HIRING PRACTICES
What can you say when asked to give a reference on a former employee? At an interview, what questions can you ask?
1. References: Common practice When asked for a reference for a former employee, our policy is to state: a) whether the person worked for us, and b) the dates of her/his employment.
2. Consent for employer to give a reference- I, ___________, an employee of _________ childcare, agree to hold _________childcare harmless for the recommendation that organization may give me.
3. Job descriptions: Functional requirements of the job focus on the task to be accomplished, not the attribute needed, e.g. diapering a baby, not lifting 20 #.
4. Interview questions: a) allow the applicant to demonstrate the ability to perform the functional requirement of the job, b) ask same questions of each applicant.
5. ADAAA (Americans w/ Disabilities Act Amended 2009): requires that persons with a handicap (restriction of a major life activity like breathing, walking) who otherwise qualify for the job, be given reasonable accommodations to apply for or perform the job, unless doing so will cause the employer an undue hardship. Employers may not ask the applicant/employee if s/he he is handicapped.
6. Equal opportunity law forbids discriminating against protected classes (age, gender, race, religion, national origin (Patriot Act exceptions), and marital status.
TERMINATING AN EMPLOYEE
If I work in at at will state, do I need to use progressive discipline procedures?
1. Employees at will can resign or be fired without notice. Employer says: Its just not working out.
2. Probation period is the easiest time to let an employee go.
3. Progressive disciplines 3 strikes: a) Verbal warning, b) Probation, c) Termination. All 3 require written notice. Employers Conscientious rescue effort includes: a) notice of what is expected, c) plan with timeline for correcting behavior, d) enhanced supervision, d) consequences of failure to improve.
4. Good cause Grounds for termination: poor performance, inability to deal w/ subordinates, insubordination, violations of employee regulations, refusal to participate in legal investigation. Immediate grounds: theft, violence, drug use.
5. Checklist for termination: a) followed written policies & procedures, b) could firing be viewed as retaliatory, c) consistent w/ treatment of other employees, d) if employee has been at organization for years, why terminate now, e) any question about employees responsibility for poor performance/misconduct?
6. Beginning trend: Replace Progressive Discipline with at will process. The employee can be terminated at will without cause. Continue to document process, however.
AMERICANS WITH DISABILITIES ACT (ADA and ADAAA)
What is a handicap? What makes an accommodation reasonable? Should I give preference to an applicant or an employee with a handicap?
Recent legislation, ADA Amendments Act (ADAAA), effective 1/1/09, overrules Supreme Court decisions interpreting the ADA narrowly, and will result in far more conditions qualifying as disabilities.
1. ADA protects a person with physical or mental impairment that substantially limits one or more major life activities (NEW: functioning of immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions along with eating, sleeping, thinking, communicating, concentrating, lifting and bending)
2. Impairments can be: Physical (deaf, blind, wheel-chaired), conditions (epilepsy, diabetes, AIDS), or Mental (bipolar, major depression, ADHD), also Record of impairment (cancer in remission), and/or Regarded as impaired.
3. Who is otherwise qualified for the job means person meets job requirements, and is able to perform the functional requirements of the job with or without accommodation.
4. Reasonable accommodations are adjustments or modifications to enable people with disabilities to enjoy equal employment opportunities (in applying for and performing on the job). Accommodations are individualized, tailored to fit the employees needs. Ask for the doctors recommendations.
5. If an undue hardship would result from making a reasonable accommodation, the accommodation does not have to be made. Undue hardship includes excessive cost, putting the organization in financial jeopardy.
6. Direct threat exception comes about if an employee poses a significant risk of harm to him/herself or others on the job. The direct threat must be likely to occur, not just speculative.
BABYSITTING & RELEASE TIME POLICIES & PROCEDURES.
Making sure each child leaves our program safely must be balanced with the custodial parents right to pick up the child. These policies and procedures prevent issues from arising when families pick up children.
See Bruno, Holly Elissa, At the end of the day: policies, procedures, and practices to ensure smooth transitions Child Care Information Exchange, Sept/Oct 2005, pp. 66-69, or at hollyelissabruno.com.
1. No babysitting policy:
(
Staff members at ______ are not permitted to babysit for families in our program.
)
2. Consent to hold _____ program harmless for staff babysitting:
(
We/I _________ parents/legal guardians of __________ (name of child/ren) agree to hold _______ (Name of program) harmless for any harm that our child may experience while under the care of staff member ________ (teachers name). We are aware of the programs No Babysitting policy, and chose to take exception to that policy.
************************************************
We hold _______ (name of program) harmless for any harm that may befall our child_______ (childs name) when staff member ________ (teachers name) babysits for our child on _____________ (date and time).
__________________ _____ ______________ ____
Parent(s)/guardians name Date Program Director
Date
)
3. Rights of persons with custody to pick up child(ren):
(
Under the laws of the state of ________, both parents may have the right to pick up their child, unless a court document restricts that right. The enrolling parent, who chooses not to include the other parent on the authorized list, must file an official court document (e.g. current restraining order, sole custody decree, divorce degree designating sole custody). Absent that document, the program may release the child to either parent, provided that parent documents his/her paternity/maternity of the child.
)
4. Shared custody agreement
(
We, ______&_______, parents of ________ agree that ______
(parent 1) will pick up_______ Monday-Wednesday; ________ (parent 2) will pick up ______on Thursday and Friday. If a parent attempts to pick _______ on the other parents day, that parent must document the consent of the other parent to the change in schedule. If continuous changes occur, both parents will file a revised agreement with the program.
)
4. Car safety seats required:
(
Children transported in vehicles must be buckled safely into car safety seats/seatbelts that meet state requirements. Parents will take whatever steps are necessary to maintain and use car safety seats. Another person on the authorized list will be called if this requirement is not met.
)
5. Authorized list for pick up:
(
Persons on the authorized list must be at least 18 years of age and able to supply documentation of their identity.
)
6. Childs safety preeminent:
(
If we have concern about a childs safety at pick up time, we will contact another person on the authorized list to pick up the child.
)
7. Release time crisis procedure: If a crisis arises at the end of the day, we will take the following steps to ensure everyones safety and well being. We will:
Not immediately release the child. While discussing our concerns with the person picking up the child, we will engage the child with another staff member;
Contact the other parent or persons on the authorized list to enlist them in ensuring that the child leaves our care safely.
Offer alternatives. Brainstorm with the family member alternative ways to ensure the child goes home safely.
Release the child with reservation, notifying the appropriated authorities of our concern.
Call in the police and/or other authorities if anyones well being and/or safety is threatened.
1
1
Legal & ethical issues in
early childhood and school age programs
[emailprotected] (updated)
H
olly Elissa Bruno, MA, JD
hollyelissabruno.com
[emailprotected]
NB
Handout is prepared for educational purposes only & is not a substitute for consulting w/ your attorney.
LAWFUL PRACTICES & STANDARDS
What can you do daily to prevent problems?
1.
Lawful standards
to measure your practices by: a) Be consistent, b) Follow
w
ritten policies & procedures, c) Stay objective & act reasonably, d) Document &
report facts, e) Do not discriminate vs. protected classes, f) Exercise Due Process
(give
notice
of new policy & invite input
–
right to a hearing
).
2.
Documentation:
Just the fac
ts, Mam (who, when, what, wherenot why).
Avoid moral judgments, opinion, and commentary. Head start practice: If it isnt
documented, it didnt happen. Keep it simple and concise.
3.
Written policies & procedures.
You dont have to be Shakespeare to writ
e staff,
parent handbooks, job descriptions and new procedures. Written, publicized
policies, signed
/initiated
by the reader demonstrate that notice has been given.
HIRING PRACTICES
What can you say when asked to give a reference on a former employee? At
an interview,
what questions can you ask?
1.
References: Common practice
When asked for a reference for a former
employee, our policy is to state: a) whether the person worked for us, and b) the
dates of her/his employment.
2.
Consent for employer to give a
reference
–
I, ___________, an employee of
_________ childcare, agree to hold _________childcare harmless for
the
recommendation that organization may give me.
3.
Job descriptions
: Functional requirements of the job focus on the task to be
accomplished, n
ot the attribute needed, e.g. diapering a baby, not lifting 20 #.
4.
Interview questions
: a) allow the applicant to demonstrate the ability to perform
the functional requirement of the job, b) ask same questions of each applicant.
5.
ADA
AA
(Americans w/ Disabili
ties Act
Amended 2009
)
: requires that persons
with a
handicap
(restriction of a major life activity like breathing, walking)
who
otherwise qualif
y
for the job, be given
reasonable accommodations
to apply for
or perform the job, unless doing so will cause t
he employer an
undue hardship.
Employers may not ask the applicant/employee if s/he he is handicapped.
6.
Equal opportunity
law forbids discriminating against
protected classes
(age,
gender, race, religion, national origin (Patriot Act exceptions),
and
marital
status.
TERMINATING AN EMPLOYEE
If I work in at at will state, do I need to use progressive discipline procedures?
1.
Employees
at will
can resign or be fired without notice. Employer says: Its
just not working out.
2.
Probation period
is the ea
siest time to let an employee go.
