Benefits of self employment

There are benefits to the employer. The ease of sacking and the financial benefits of no employer’s national insurance, no pension contributions, no sickness and holiday pay etc.

The main advantage to the worker is the reduction in national insurance and the ability to claim expenses such as, wages to family members, use of home, travel costs etc.

This is from the different wording of the act. Allowable expenses for the self employed need to be “wholly and exclusively for the purposes of earning the profits of the trade”.

For employees they must be “incurred wholly, exclusively and necessarily in the performance of the duties of the employment”.

There is also the cash flow advantage. The self-employed do not suffer deduction of tax at source. As with all planning it is necessary to commit all the figures to paper to completely understand the financial implications and result.

The statutory position

Neither employee nor employer is defined in the Taxes Acts.

Common law differentiates on the basis that an employee has a contract of employment whereas a self employed person works to a contract for service.

The difference can be explained by the example of your house being painted. Who does the work? Is it the person who quoted or someone on his behalf?

The person who quoted is clearly self-employed but is his worker an employee? Is he under the control of the man who quoted or has he sub contracted his services?

To resolve this question you must review many aspects of how that person carries out his duties. You cannot just run through the check list on the HMR&C web site but you must paint a picture from the information gathered from that review. Then review the picture and make a decision.

The indicia

Opportunity to profit

An employee is paid a set sum under his contract whereas a self-employed person can profit from his actions. He may also lose money; an employee cannot.

Employees are remunerated for the hours they work whereas a self-employed person is usually paid for the job or task he has performed so the profit is in his own hands. He can adjust overheads and time; also he can take on help to complete the contract.

Employees cannot and cannot influence their return and they take no risk.

Mutuality of obligations

The length of a contract is not conclusive one way or the other. Employees often enter short term employment contracts.

What is important is that the self-employed can decline work and in effect select the work they want to do. Employees would be sacked if they declined work. Make sure the contract is per job or for a fixed term.

This assumed importance in the case (Sp C 599 Parade Park Hotel) which is useful in determining the meaning of mutual obligations.

It means that so long as the contractor is not obliged to offer a new contract and as long as you can decline work, then mutuality of obligation does not exist.

This was confirmed in the case of Bridges and others v Industrial Rubber plc where the contractual absence of a promise to provide work and the counter promise to do it was inconsistent with a contract of employment regardless of the other conditions of the working relationship.

Tax

Make it clear in the contract that the sub contractor is responsible for his own tax and national insurance and receives no benefits e g. no sick pay; no holiday pay and no pension contributions are paid on his behalf. It would be wise for the sub-contractor to register for VAT.

Tools

A self-employed worker usually provides the tools necessary to do the job.

Employees such as tradesmen usually supply the necessary hand tools. Larger items of equipment would be provided by the employer, the self-employed sub-contractor would provide them himself even if leased.

Work standard

For any engager the standard of work performed is important. An employer will require the employee to correct any unsatisfactory work but it is done in the employer’s time.

A self-employed person must perform the contract to an acceptable standard according to the terms of the contract. Any unsatisfactory work is put right in his own time and at his own expense.

Organisation

It is important as to how workers are viewed by the neutral. An explanation of this item is outlined by the following example taken from the HMR&C web site.

“Someone taken on to manage a client’s staff will normally be seen as an integral part of the client’s organisation and this may be seen as a strong indicator of employment.”

One “employer”

Most people explain that if you work for only one engager or contractor you cannot be self-employed.

I agree that the more firms worked for the more likely a person is to be self-employed. Only one engager is not conclusive of employment.

You could have three concurrent employments. A good example of one engager not preventing self-employment would be lorry drivers. If you look at the driver’s door of a lorry you will see an indication of what I mean.

It is clear that if you supply the major equipment you are more likely to be self-employed.

Nothing can be deduced from part time work as both an employee and a self-employed person can work part time. A person can work for more than one engager.

He can have more than one employment; more than one engager but within the self-employed status. An employee under a contract of employment can also be self-employed at the same time.

Materials

If a subcontractor does not want to meet the cost of materials get the contractor to allow the sub-contractor to use his suppliers’ accounts and enjoy the same discounts. He will, of course, meet the cost from the recharge in the contract price.

Employment contract

If a contract requires a worker to provide personal services and requires the person who engages that person to remunerate him for those services that is likely to be a contract of service and thus an “employment” contract.

Such a contract will go on to specify all the other conditions and requirements of the engager i.e. working hours, holidays, sickness, discipline, grievances etc. So avoid reference to specific days or hours to be worked.

Substitution

A clause that specifies that a worker can send a substitute in his place or engage other workers to help him fulfill his obligations under the contract is very important in considering the overall balance of the factors and must be in every self-employed contract.

This is one of the strongest single indicia of self-employment. Dr Avery Jones in the case Talentcore Ltd v Commissioners for HMR&C found that the substitution issue was more important than the control factor.

Again I must stress that the actions of the parties must mirror the contract so it would be wise to ensure that substitution takes place during the life of the contract or that help is engaged. The point is that under a contract of employment it is the worker that is employed and it is his labour that is pledged. The labour of someone else must mean a contract for rather than of service.

HMR&C acknowledges that it is the right of substitution that is important. The fact that the substitution has not occurred during a contract is not necessarily relevant. However, a contractual right will be ignored if in reality the worker must undertake the work personally. Dragonfly Consultancy Limited v HMRC (2008)

Payment

Most employees are paid by the hour, week, month or are on an annual salary.

The self-employed are usually paid by the job.

I find no difficulty in turning a day rate to payment per job. Take a bricklayer; he knows from the plans how long the job will take. Let us say four days and assume his rate two hundred pounds per day. He simply quotes eight hundred pounds for the contract.

Like all the indicia no one item is crucial. It is the balance between them all. HMR&C place considerable reliance on the method of payment but as I have said it is only one item.

Make sure, for example, that he hires the necessary scaffolding!!

Financial risk

There is virtually no financial risk to an employee. The self-employed risk their money. HMR&C indicate that “The risk of making a loss is a very strong indicator of self-employment and can be decisive on its own”.

Make sure you take out all the necessary insurances to include public liability and professional indemnity.

If you undertake work at home make sure with your broker that your home insurance covers any risk.

Control

An employee is usually subject to a large degree of control although not always exercised in practice. He is also told how to do the job, although an expert such as a brain surgeon would be free of that control.

Also an employee’s hours of work, the place where he carries out the contracted work and other practical items are controlled by the employer.

In the case of Market Investigations Ltd. v The Minister of Social Security the Judge said “The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor”

The self employed are free of this control. See J and C Littlewood (T/a J L Window and Door Services) and Anor v R & C Commrs. January 2009 for the importance of this subject.

Question by mimi: How important is employment history when getting a home loan?
For myself, I just graduated college and in the process of looking for a job. Once I find one I plan on trying to get a home loan. I have no employment history because I was going to college. So will they take that into consideration?

For my fiance, he worked in the hotel industry for 4 years but recently went into the health industry because they paid more. He has been working there for 4 months. Will that be a problem for us because he is in a new line of employment?

Thanks

Best answer:

Answer by ibu guru
You generally need at least 3 years track record on the job. You’ll also need 20% down, all closing costs, and 3 – 6 months of reserves, credit scores of 700 or better, 3 years tax returns, etc.

FHA supposedly only requires a minimum of 3.5% down, but we aren’t seeing anything actually get funded by closing date without at least 20% down. There seems to be an inordinate incidence of “last-minute hitches” with anything less than 20% down. But then FHA is broke.

Start saving. And don’t even think about buying property with an unrelated party. If you & fiance actually marry, and have the down payment, etc, saved up, then go ahead.

Add your own answer in the comments!
February Employment Numbers Mixed For Twin Ports
Duluth, MN (Northland’s NewsCenter) Employment in the Duluth-Superior Metro area grew by 1.1% in February, but remains substantially down from pre-recession levels.
Read more on Northland’s News Center

Post from: Best Jobs For The Future

Are You Really Self Employed?

Many states have enacted “mini-I-9” laws. Employers, especially companies that operate in more than one state, must closely monitor their compliance with the employment eligibility and verification laws for each state in which they do business.

The most common regulation states have imposed on businesses in recent years is requiring employers to use the federal E-Verify system to confirm workers’ immigration status and employment eligibility or work authorization, specifically illegal immigrant employment eligibility, work authorization and immigration status.

E-Verify is an Internet-based system operated by Department of Homeland Security (DHS/U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility or work authorization of new hires and the validity of their Social Security numbers.

Employers or “Designated Agents” (e.g., payroll companies) must register online and agree to the terms of participation to use E-Verify. [Registration includes agreeing to the DHS/Immigrations and Customs Enforcement (ICE) Memorandum of Understanding (MOU). A discussion of the ICE E-Verify MOU is outside the scope of this post.]

E-Verify will soon be required of all federal contractors. DHS is now promulgating “final” E-Verify regs. I present an E-Verify overview and update in this post.

(The National Conference of State Legislatures does a remarkable job of monitoring these new developments and I include a variation of their chart and summary of the new state legislation below.)

Review of Relevant State Laws

State Laws Requiring Use of E-Verify

Arizona
Arizona

The Arizona Fair and Legal Employment Act (HB 2779), enacted in 2007, prohibits employers from knowingly hiring unauthorized workers and requires all employers to use the Basic Pilot Program to verify employment eligibility. It establishes substantial penalties and threatens noncompliant employers with suspension and potential revocation of their business licenses. Effective date Jan. 1, 2008.

Colorado
Colorado HB 1343 (signed 6/6/2006) prohibits state agencies from entering into contract agreements with contractors who knowingly employ illegal immigrants and requires prospective contractors to verify legal work status of all employees. The contractor must confirm that the Basic Pilot Program has been used to verify the status of all employees. If the contractor discovers that an illegal alien is employed, the contractor must alert the state agency within 3 days.

Georgia
The Georgia Security and Immigration Compliance Act, SB 529, covered employment, enforcement, and benefits and was signed by the Governor on April 17, 2006. The bill requires public employers, contractors and subcontractors with 500 or more employees to participate in E-Verify for all new employees beginning July 1, 2007. The law is phased in for public employers, contractors and subcontractors with 100 or more employees effective July 1, 2008; and for all employers by July 1, 2009.

Idaho Executive Order
On December 13, 2006, Governor Jim Risch issued an executive order requiring that state agencies participate in the E-Verify system. Also, all workers employed to the state through contractors must also be from companies that have been verified to have eligible employees.

Minnesota Executive Order
Governor Tim Pawlenty issued an executive order on Jan. 7, 2008, stating that all hiring authorities within the executive branch of state government as well as any employer seeking to enter into a state contract worth in excess of ,000 must participate in the E-Verify program. The Executive Order’s effective date is January 29, 2008.

Mississippi
Mississippi SB2988 (signed 3/17/08) requires public and private employers to participate in E-Verify. The phase-in period is: all government agencies and businesses with more than 250 employees by July 1, 2008; companies with 100 to 250 employees by July 1, 2009; those with 30 to 100 employees by July 1, 2010; and all remaining companies by July 1, 2011. An employer violating the law is subject to the cancellation of public contracts, ineligibility for contracts for up to three years, and loss of business license for up to one year. The law also makes it a felony to accept or perform employment knowing or in reckless disregard of the immigrant’s ineligibility to work, with penalties from one to five years of imprisonment and/or ,000 to ,000 in fines.

North Carolina
All state agencies, offices, and universities must use E-Verify, required by SB 1523 in 2006. This applies to employees hired on or after January 1, 2007, except for employees of local education agencies hired on or after March 1, 2007.

Oklahoma
The Oklahoma Taxpayer and Citizen Protection Act of 2007 (HB 1804) addressed multiple issues: transporting and harboring, driver’s licenses, public benefits, law enforcement and employment. It made it a felony to transport or harbor unauthorized immigrants, with exceptions for health or benefits guaranteed by federal law. It requires public employers, contractors and subcontractors to participate in a federal electronic employment verification system and requires income tax withholding for independent contractors who do not have valid Social Security numbers. The law became effective Nov. 1, 2007.

Rhode Island Executive Order
On March 27, 2008,Governor Carcieri issued an executive order requiring executive agencies to use E-Verify; and for all persons and businesses, including grantees, contractors and their subcontractors and vendors to use E-Verify.

Utah
SB 81 was signed into law 3/13/08. The law address multiple issues, including driver’s licenses, law enforcement, harboring and transporting, public benefits and employment. It requires public employers to register and use the Basic Pilot program for new employees; state contractors must use Basic Pilot effective July 1, 2009. The law makes it a Class A misdemeanor to conceal, harbor, transport or shelter undocumented immigrants, though church, charitable and humanitarian assistance groups are exempted.
Encourages the Use of E-Verify (1)

Tennessee
HB 729, signed into law on June 26, 2007 and effective January 1, 2008 states that employers who “knowingly employ, recruit or refer for a fee for employment an illegal alien” are subject to a temporary suspension of their business license; repeat offenders are subject to a one-year suspension. Employers who comply with the requirements of the current I-9 process or who verify new hires through the E-Verify within 14 days of employment are shielded from sanctions.

One State Limits The Use of E-Verify
Illinois
Illinois enacted HB 1744, which bars Illinois companies from enrolling in any Employment Eligibility Verification System until accuracy and timeliness issues are resolved. Illinois also enacted HB 1743, which creates privacy and antidiscrimination protections for workers if employers participating in E-Verify don’t follow the program’s procedures.

State Laws Targeting Employers On Immigration Status

Current Litigation Over State Laws: Federal Pre-emption
Two lawsuits now making their way through the federal court system could restrict states’ ability to continue to crack down on businesses that hire unauthorized workers. One is a court challenge to the 2007 Arizona employer sanctions law filed by a coalition of Arizona trade groups. In February, a federal judge denied the coalition’s request to delay implementation of the law with a temporary restraining order, and the plaintiffs took their case to the U.S. Ninth Circuit Court of Appeals. Oral arguments are scheduled for this summer and a decision is expected in the fall.

Another lawsuit making its way through the federal courts originated last year in Hazleton, PA, where a local ordinance enacted in 2006 denies business permits to employers who hire illegal immigrants and fines landlords who rent to them. In a ruling issued last summer, a federal judge struck down the Hazleton ordinance, saying it treads on federal terrain and violates illegal immigrants’ constitutional right to due process.

The town is appealing the decision, and the case will be heard in the U.S. Third Circuit Court of Appeals this summer. A decision in this case is also expected in the fall.

If the two appellate courts hand down similar rulings; either both upholding the local laws, or both asserting federal authority, the battle over federal preemption could end there. But if the courts hand down opposing decisions – one supporting state authority and the other backing federal preemption – the debate will likely go to the Supreme Court. The consequence: no clear direction for state lawmakers for at least a year or two.

Many legal experts say the bills being passed in state capitals are not constitutional, and many of the new laws are being challenged in court. The U.S. Constitution gives federal law “supremacy” over state statutes. My personal understanding of the fundamental “pre-emption” issue is that the federal laws do not pre-empt these state laws. Frankly, this is a very complex constitutional issue.

The 1986 Immigration Reform and Control Act (IRCA) explicitly prohibits states from imposing sanctions on businesses that hire unauthorized workers. But one phrase in the 1986 law – a seven-word parenthesis allowing states some leeway in the matter of “licenses and similar laws” – has created a contested gray area.

Many states have taken the IRCA parenthesis to mean they have the authority to suspend or revoke the business licenses of employers who hire unauthorized workers. Businesses and many constitutional lawyers disagree.

“You have this complex overlay of statutes and regulations and court cases, and you’ve got this federalism question of what has traditionally been federal power and what the states can do,” Jan Ting, a Temple University law professor, told the Washington Post. “There could not be an area of law that is less clear than this.”

Because states have until recently stayed away from imposing sanctions for immigration violations, federal preemption has rarely been tested and few court precedents exist.

Private Rights of Action
While E-Verify requirements have so far proven the most popular method to deter the hiring of illegal immigrants, some states are beginning to make use of another tool: giving employees a “private right of action.” Oklahoma was the first state to pass such legislation, in 2007, allowing fired U.S. workers to sue their employers if unauthorized workers were subsequently found to be working in their place. Mississippi, Utah and South Carolina followed with similar provisions this year, allowing fired workers to sue if they are then replaced by illegal immigrants. Some say the laws could open businesses to lawsuits if they employ any unauthorized workers, whether or not they have hired them to replace fired legal workers. Other states are expected to adopt this approach next year.

Also still in place are provisions mandating that all businesses in Arizona enroll in E-Verify and allowing prosecutors to investigate anonymous tips made against businesses alleged to be employing unauthorized workers.

State Felony Laws
Companies should also be concerned about a Mississippi law that makes it a felony for illegal immigrants to accept unauthorized employment. Violators are subject to imprisonment from one to five years and fines of between ,000 and ,000. And while the measure seemingly applies only to unauthorized workers, if I had clients who do business in Mississippi I would be strongly cautioning them. I have many clients, both individual and business, where the kind employer assists driving the very good employee to work because the employee does not have a valid state driver license because s/he lacks immigration status. In my opinion a business can be prosecuted for aiding and abetting a felony or harboring a felon under this law.

Oklahoma also imposed felony penalties, in 2007 – in that case, against anyone caught transporting, concealing, harboring or sheltering illegal immigrants in any location,
including any building or means of transportation. Utah, Missouri and South Carolina passed similar measures this year, and many fear the provisions could be used against employers who knowingly hire unauthorized workers.

Question by CHIcon: EmPLOYMENT!!!!!!!!!?
could/have you ever or could/would you ever date someone that was unemployed?
Qualification: they are only ‘temporarily’ unemployed (think about our economy…it may happen to any one!!!!) but temporary can be any where form a week to whenever…does it make you think less of that person…would you give them a chance or would you move on? i know that this is not an ideal situation to be in but you never know IF you may find youself in this situation
as i add this i have trepidation…i don’t need people to tell me that i haven’t done what i can do (because i HAVE!!!)…this is the second time that i have found myself unemployed in the last 5 yrs now…the first was before i graduated college (14months) and now i am going on 6 months…believe you-me it is not for lack of trying!!!! i have a BA degree and qualifications for every job that i apply for…it seems the response overwhelmingly is…’we don’t want qualified candidiates..we want cheap labor’…the flip side of that is ‘you’re overqualified’ for the simple jobs that would afford me a ‘life’…because they see the degree on my resume and know that it’s not worth the risk to hire someone that they know can up and leave when something better comes along…the available jobs have dwindled while the pool has saturated…i haven’t gone on the dole because i didn’t think it would take this long…but what else can i do? now answer the question…
……….
………..
……….

Best answer:

Answer by Pappy
Well there is a difference between someone looking for work and someone who sits on their butt all day and does nothing.

If they where genuinely looking for work it wouldn’t make a scrap of difference to me.

What do you think? Answer below!

Post from: Best Jobs For The Future

State Laws and Employer I-9 Employment Verification Responsibilities

DEPARTMENT OF EMPLOYMENT GENERATION AND TRAINING, PUNJAB

It is to understand nomenclature has changes not the ACT of 1959.
Employment Department, Punjab has changed its name from Department of Employment Punjab to Department of Employment Generation and Training, Punjab.

History of Employment Service:

After the 2nd world war in 1945, for orderly absorption of the released service personnel and other war workers; the need for an organisation to handle this complex problem in a uniform manner was felt and in July, 1945 “Directorate General of Resettlement and Employment ” was set up

In 1947, after partition of the Country this Directorate was entrusted the job of resettlement of a large number of displaced persons (refugees).

In early 1948, the Employment Exchanges were thrown open to all categories of applicants which required transition of Employment Service from a resettlement agency to an all India placement organisation.

On 1-11-1956 the day to day administration of the Employment services was handed over to the state governments. So now the Employment service is the joint concern of the Central and State Governments where the Central Government formulates national policies, standards and procedure to be followed by the Employment Exchanges in the states; coordinates the work of the Employment Exchanges in the states; plans and formulates programmes for expansion and development of the services; conducts training programmes for employment officers and other such works which are required for the betterment of these services whereas State Governments fully control the Employment Exchanges in their respective states.

In 1959 The Employment Exchanges Compulsory Notification of vacancies Act was enacted by the Parliament and after notification of its rules, it came into force from 1-5-1960. Under the provisions of the Act all the establishments in the public sector and all the establishments in the private sector normally employing 25 or more workers are required to notify their vacancies and also render quarterly and biennial returns to the Employment Exchange of their area. Creation of new Department of Employment Generation A new Department of Employment Generation and Training has been carved out of the Department of Labour and Employment vide Govt Notification No. 18/16/2007-GC(2)/7219 Dated 11-04-2007 and 31-07-2007 with the following main objectives:

To develop a vision, strategy & policy framework for employment generation & training
To suggest measures to derive synergy of the plans and programmes of various departments working directly or indirectly for employment generation and vocational training. To advise on institutional and organizational mechanism for effective implementation of the action plan for employment generation and the vocational training to make the youth really employable by enhancing their skills and competencies. To regularly plan, implement, monitor and oversee employment generation action plans in the State and advise on the future steps to be taken. To facilitate manpower planning and vocational training in all the key sectors of the economy. Bringing out critical gaps in various services sectors and facilitate addressing these gaps as per the requirement of the national and international market.
To identify and advise on the regulatory aspects of job oriented training policies. Facilitate establishing more job oriented vocational institutions in the Public Private Partnership Mode in line with the requirement of skilled manpower and enhancing the capacity of the existing institutions. Harnessing the potential of various self help youth groups and educational organisations of repute.

Present Functions of the Employment Department: 1. Registration of job seekers for placement against notified vacancies. 2. (a) Providing education and vocational information to students, applicants and parents. (b) Collects compiles and disseminates information about various self employment schemes being offered by various departments of the state. The Employment Officer identifies and motivates candidates from the Live Register for adopting self employment as a way of life. (c) Prepares and distributes career literature free of cost to schools, colleges and libraries. Available career literature in English language is also translated into regional language for its better understanding at the grass root level. 3. Under the Employment Market Information programme information of the manpower market is collected and compiled for state and national level planning. 4. The department works for the implementation of various sections of The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. 5. Disburses unemployment allowance to Educated Unemployed applicants registered with the employment exchanges with specified terms & conditions as per “The Punjab Payment of Unemployment Allowance to Educated Unemployed Persons Rules – 1978”. 6. Provides employment assistance and guidance to persons desirous of going abroad through its Overseas Employment Cell. 7. A special employment exchange provides employment services to disabled persons by approaching employers and motivating them to employ physically challenged but otherwise eligible applicants. 8. Implements employment related sections of “Persons With Disabilities Act 1995″. New functions and roles of the Department In addition to the present functions, the Department will be performing following new functions:
i) Enhance the employability of Punjab Youth by improving their Vocational and soft skills
ii) Vocationalisation of education system at school and college level and to facilitate Vocational training for school drop-outs and informal sector
iii) Promote Entrepreneurship and self-employment
iv) Prepare Punjab Youth, through rigorous trainings, for employment in Defence services and other jobs based on competitive examinations.
v) Fully prepare Punjab youth for overseas opportunities through enhancement of vocational skills and foreign language skills and by providing emigration assistance.
vi) Upgrade Existing Employment Exchanges to Electronic Employment & Training Bureaus
vii) To make available some of the employment services through Suwidha Centres at District/Subdivision level and Kiosks at village/ town level.
viii) Every University, deemed university and selected institutions to be notified as an e-employment exchange in their respective areas to make their services easily accessible.
ix) Conduct Manpower Survey and Job Survey to assess skill and competency gaps.
x) Vocational Awareness, Counseling and Guidance to Punjab Youth, administering profiling tests.
xi) Identification, Fine Tuning and Design of Training programmes.
xii) Apprenticeship training to be effectively administered and monitored
xiii) Active involvement of C-PYTE in every district for training of youth is important.
xiv) Make it compulsory for all the institutions and selected schools to establish at least 20% to 30% seats on Vocational Education by addition/ conversion
xv) Examination and certification of training and skills
xvi) Liaison for placement of Youth with corporate, recruitment agencies
xvii) Organise Job festivals, job melas, seminars, conferences etc. for job placements
xviii) Foreign Training and Employment Bureau for providing employment assistance, guidance, and training to the Punjab Youth desirous of going abroad for employment and business opportunities in the foreign countries like Canada, USA, Europe, Australia, Middle East etc.
xix) Liaison with foreign manpower ministries and employers
xx) Check on the activities of unregistered agents.
xxi) Pre-Departure cum orientation programme.

Post from: Best Jobs For The Future

DEPARTMENT OF EMPLOYMENT GENERATION AND TRAINING, PUNJAB

William Allan Kritsonis, PhD
Professor

Public School Law & Educational Laws and Policies

EMPLOYMENT

INTRODUCTION

          When we speak of employment, we find that the public school system is the largest employer in the state of Texas. The full scope of the employment relationship examines the constitutional concept of due process of law, the different employment arrangements that are available to public schools in Texas, the hiring and firing process, and the legal issues that arise in that context (Walsh, Kemerer, and Maniotis, 2005).

          For the purpose of this report, we will present ten cases as they relate to the different employment arrangements found in public education. The findings are intended to be informative and beneficial in terms of “at-will employees”, “Non-Chapter 21 Contracts”, “probationary contracts”, “term contracts”, “continuing contracts”, and “third-party independent contractor.” 

Case One

United States Court of Appeals,

Fifth Circuit.

Emilio MONTEZ, et al., Plaintiffs-Appellants,

v.

SOUTH ANTONIO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee

No. 87 – 5501

LITIGANTS

Plaintiffs-Appellants: Emilio Montez, et. al

Defendant-Appellee: SOUTH San Antonio INDEPENDENT SCHOOL DISTRICT

BACKGROUND

In 1979 Montez was hired to teach in the Junior Reserve Officer Training Corps program. Montez has never been certified as a teacher by the responsible authorities of the State of Texas. His initial employment was validated on October 15, 1979 when the Texas Education Agency issued him an Emergency Teaching Permit. That permit expired on August 31, 1980 and was never reissued. Montez continued to work until September 1985 when he was notified of the anticipated termination of his employment. After two hearings before the school district authorities, Montez was discharged at the end of the 1985-86 school year.

FACTS

Emilio Montez appeals a summary judgment rejecting his claims under the Fifth and Fourteenth amendments and 42 U.S.C. series 1983. He alleges wrongful termination by the SAN ANTONIO ISD of his employment as an instructor in the JROTC program. The district court found no genuine issue of material fact and concluded that Montez had not been denied due process as relates to a claimed property interest.

The United States District Court for the Western District of Texas, at San Antonio, H. F. Garcia, J., granted summary judgment against instructor. Instructor appealed.

DECISION

In order to establish due process deprivation of property interest under the Fourteenth Amendment, plaintiff must establish that he had “legitimate claim of entitlement” to that interest. Montez who was hired to teach in the JROTC program was employed under “continuing contracts” after his emergency teaching permit expired.

When he was subsequently discharged by the school district, it was determined that he was not “teacher”, for purposes of Texas “tenure law” granting “teachers” legitimate claim of entitlement to, and protection under the due process clause of the Fourteenth Amendment. The instructor never held required permanent teaching certificate, and any contract purporting to give instructor more than that allowed by Texas law was beyond the power of the school district and could not bestow property interest on instructor.

Montez contends that, even if his contracts were not valid, the circumstances surrounding his employment gave him property interest in his job because he relied on the words “continuing contract”, and he was never notified of the certificate requirement. This contention overlooks the Hornbook rubric that knowledge of the law is presumed.

Montez asserts estoppel, but that claim also founders. Estoppel cannot be used to create a contract right where none exists. Further, estoppel may be asserted only rarely against a governmental entity. Nor may Montez advance a claim of deprivation of a liberty interest. He had two hearings before the school authorities prior to his termination. Liberty interests are not implicated.

DICTA

The Court of Appeals, Politz, Circuit Judge, held that: (1) instructor was not “teacher” for purposes of Texas tenure law granting “teachers” Fourteenth Amendment interest in their jobs; (2) instructor failed to demonstrate facts sufficient to establish that circumstances surrounding his employment gave him “property” interest in his job; (3) instructor could not prevail on estoppel theory; and (4) instructor’s liberty interests were not implicated.

IMPLICATIONS

Montez’s brief pointedly focuses on what appears to be a gap in the Texas Education Code’s coverage as respects the treatment accorded JROTC instructors. Montez’s complaints should be addressed to the Texas legislature. It is not cognizable as a constitutional or civil rights claim in this forum.

Case Two

LITIGANTS

United States District Court, N. D. Texas, Dallas Division.

                             Chris BARBRE (Plaintiff)

                                      V.

GARLAND INDEPENDENT SCHOOL DISTRICT, the Board of Trustees of the Garland Independent School District, Doug Butler, Charles Cooper, Ronnie Rogers, R. E. Dodson, Harry Hill, Jim Kennedy and Darwin Morris, Eli Douglas, Charles Price and W. E. Peters (Defendants)

No. CA 3 – 77 – 0187 – C

BACKGROUND

The plaintiff, Chris Barbre, a former untenured teacher’s aide at Garland Independent School District, brings her main claim under 42 U.S.C. series 1983, and under the First Amendment of the U.S. Constitution, alleging that her employment was not renewed because of her protected First Amendment speech.  The plaintiff also brings procedural due process claims under the Fifth and Fourteenth Amendments of the U.S. Constitution, and under 42 U.S.C. series 1981.

The individual defendants, all of them officials of the Garland Independent School District, are sued individually and in their official capacities. The plaintiff seeks reinstatement, back wages, actual and exemplary damages and attorney’s fees and costs. In addition, the plaintiff seeks to have “all references to her alleged ‘disloyalty’, termination and non-renewal,” expunged from her employment records.

FACTS

Former untenured teacher’s aide’s speech at school board meeting was not protected by First Amendment, where nature of aide’s communications related to immediate terms and conditions of her employment, and only tangentially to matters of public concern, aide’s communications raised questions of maintaining either discipline by immediate superiors or harmony among co-workers, aide’s relationship with superior was such that certain forms of public criticism of him by her would seriously undermine effectiveness of working relationship between them, aide’s speech impeded proper performance of her daily duties, and aide could have achieved her purposes in less disruptive ways.

DECISION

Contention of former teacher’s aide that she was terminated without procedural due process provided no basis for relief. There was no basis to hold that there was any property interest in aide’s employment contract, so as to entitle her to procedural safeguards, because she did not have any type of tenure.

Reasons for termination or non-renewal of a public employee  that are not made public cannot form basis of claim that a due process “liberty” interest has been impaired, so as to entitle public employee to procedural safeguards.

A public employee does not have a claim under Fourteenth Amendment denial of a hearing on his non-renewal, when disclosure of his employment file would amount to stigmatization, unless he asserts that report in files is substantially false and thus deprives him of protected liberty interest.

After considering all the evidence presented at trial, the pleadings, briefs and oral argument of counsel, the Court concludes that plaintiff fails to establish any violation of the U.S. Constitution or federal statutory law by the School District or its officials. The First Amendment claim, although plausible, does not succeed on the facts of this case, nor on applicable law. Therefore, the Court must deny plaintiff all requested relief.

DICTA

The District Court, William M. Taylor, J., held that: (1) under circumstances, aide’s speech at school board meeting was not protected by First Amendment, and (2) even if aide’s speech before and during school board meeting was protected by First Amendment, and even though such speech was a motivating factor in her non-renewal, her insubordination, subsequent to board meeting, was a valid and separate explanation for her non-renewal apart from any of her prior expressions.

IMPLICATIONS

The First Amendment requires striking a balance between interests of teacher, as a citizen, in commenting upon matters of public concern and interest of state, as an employer, in promoting efficiency of public services it performs through its employees. Unless such balance favors state, it should not be permitted to punish a teacher for truthful speech, or for false speech made without malice or reckless disregard of truth.

   Case Three

LITIGANTS

United States Court of Appeals,

Fifth Circuit.

James W. Russell, Jr., Plaintiff-Appellant

v.

EL PASO INDEPENDENT SCHOOL DISTRICT

et al., Defendants-Appellees.

No. 76-1836

BACKGROUND

A teacher, the plaintiff, whose employment contract was not renewed, filed this action alleging infringement of constitutionally protected rights under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. series 1983 (1970). The district court dismissed the case on the pleadings because of the plaintiff’s failure (1) to exhaust his administrative remedies under Texas state law, and (2) to raise a substantial federal question. The United States District Court for the Western District of Texas at El Paso, William S. Sessions, J., dismissed the case on the pleadings and teacher appealed.

FACTS

     The parties to this appeal differ as to what is the applicable Texas law governing appellant’s employment contract with the El Paso District. Under Section 13.104 of the Texas Education Code (1972), the school board’s decision not to renew Russell’s contract would be “final and nonappealable.” Russell contends that this is the applicable statute. For that to be the case, however, it must be shown that the school board in question had adopted the tenure plan contained in Chapter 13 of the Education Code.  The contract in question was executed on August 24, 1973. It was not until December 13, 1973 that the Board of Trustees of the School District adopted the tenure plan. We see no reason to apply retroactively the terms of the tenure plan to an employment contract already in existence.

With regard to the substantiality of the federal question presented by Russell, it is important to note that the contract under which he was employed was for one year. More importantly, this was his first year of employment with the school district.

Similarly, there was no impermissible denial of a liberty interest. “Where a person’s good name, reputation, honor or integrity, is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Russell requested, and was given a full and fair hearing on this matter.

DECISION

Teacher employed for one year did not have a reasonable expectation of reemployment after the first year of employment. The teacher whose employment contract was not renewed and who requested and was given a full and fair hearing sustained no impermissible denial of liberty interest.

DICTA

The Court of Appeals, Gewin, Circuit Judge, held that terms of tenure plan adopted subsequent to execution of teacher’s contract would not be applied retroactively and adoption of the plan did not render applicable section of Education Code under which board’s decision not to renew teacher’s contract would be final and nonappealable. Teacher was required to exhaust administrative remedies; that teacher employed for one year had no reasonable expectation of reemployment; and that there was no impermissible denial of liberty interest.

IMPLICATIONS

The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs. The United States Constitution cannot be feasibly construed to require federal judicial review for every such error. In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights, we must presume that official action was regular, and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions.

    Case Four

LITIGANTS

Court of Civil Appeals of Texas,

Corpus Christi.

Reynaldo RUIZ, Appellant,

v.

The STATE of Texas, Appellee

No. 1102

BACKGROUND

Reynaldo Ruiz was elected Justice of the Peace for Precinct 3, Place 2 in Hidalgo County, Texas, for a second term in November 1974 and has been discharging his duties as Justice of Peace since January 1, 1975. Ruiz has also been employed in a teaching capacity as ‘Coordinator of the Cooperative Part Time Training Program’ for the La Joya Independent School District, a job he has held since 1967. In September of 1975, the Hidalgo County Auditor and Treasurer, upon advice of the County Criminal District Attorney, began withholding the appellant’s pay checks for his services as Justice of Peace.

FACTS

Appeal was taken from an order of the 92nd District Court, Hidalgo County, Paul A. Martineau, J., declaring that the appellant was not qualified to be paid compensation as a justice of the peace while he also maintained employment as a public school teacher.

DECISION

Provision of Constitution prohibiting any person from holding more than one office of emolument specifically excepts justice of peace from dual emolument  prohibitions, and teacher was an employee rather than an “officer”; thus, person employed in teaching capacity for independent school district and who also served as elected justice of  peace was eligible to receive compensation for both positions.

DICTA

The Court of Civil Appeals, Nye, C. J., held that the constitutional provision prohibiting persons from holding more than one office of emolument specifically excepted from its prohibitions the office of the justice of the peace; and that the separation of powers provision of the Constitution did not prevent appellant from receiving a salary and serving as both a public school teacher and a justice of the peace. Reversed and rendered.

IMPLICATIONS

Separation of powers provision of the State Constitution did not prevent public school teacher from also serving and receiving salary as justice of peace where such person, as teacher, was not exercising sovereign powers of State, and where there was no evidence that his activities and duties as public school teacher interfered in any way with his constitutional duties as justice of peace.

   Case Five

LITIGANTS

IN THE SUPREME COURT OF TEXAS

No. 01- 0557

Midland Judicial District Community Supervision and Corrections

Department, Petitioner

v.

Ruthie Ann Jones, Respondent

On Petition for Review from the

Court of Appeals for the Eight District of Texas

BACKGROUND

On July 30, 1993, the Midland Judicial District Community Supervision and Corrections Department (CSCD) informed Ruthie Ann Jones that she had been hired as a Pretrial Services Administrative Technician III. At that time she was given a memorandum that stated that she would start work on August 9, 1993. The memorandum also discussed her salary. She would receive a starting monthly gross pay of ,558.00 in August; would be added to her pay starting 1/1/94; another increase effective 4/1/94; and she would have a monthly gross salary on 9/1/94. The salary figures were contingent upon her future performance evaluations and available county funding.

FACTS

In December 1993, Jones’ position was eliminated due to budget constraints. Jones filed suit against the CSCD, alleging wrongful termination and breach of employment contract. The trial court granted CSCD’s motion for summary judgment on the ground that Jones was an at-will employee. The court of appeals held that Jones’ employment was for a fixed term, reversed the trial court’s summary judgment, and remanded the case for trial.

DECISION

For well over a century, the general rule in this State, as in most jurisdictions, has been that absent a specific agreement to the contrary, employment may be terminated by the employer or the employee for good cause, bad cause or no cause at all.

The general statements indicating that Jones’ salary increases were contingent on “future performance evaluations and available county funding” do not indicate CSCD’s intent to be bound not to terminate her employment except under clearly specified circumstances. The court of appeals erred in concluding that the memo constituted a contract of employment for one year. The written form of CSCD’s general statements does not change the fact that they do not unequivocally indicate the required intent.

DICTA

“The issue in this case is whether the respondent’s employment with the petitioner was for a fixed term or at-will. Because we conclude that there was no fixed term of employment, we reverse the courts of appeal’s judgment and render judgment that the employee take nothing by her claims against the employer.

IMPLICATIONS

When a contract is made by the employer and the employee, the terms of employment have to be specific and clear and may not be subject to other interpretations in the future by either party.

Case Six

LITIGANTS

United States Court of Appeals,

Eight Circuit.

Frances FISHER, Appellee

v.

James SNYDER et al., Appellants

BACKGROUND

Mrs. Fisher, a middle-aged divorcee, was employed at the high school in Tyron, Nebraska from 1970 to 1972. Her married son, then 26 years old, lived and taught in the neighboring town of Stapleton, Nebraska. Mrs. Fisher lived alone in a one-bedroom apartment. On several occasions, young ladies, married couples, and young men who were friends of her son, visited Tyron. Because hotel and motel accommodations were generally sparse and unavailable in Tyron, Mrs. Fisher followed the advice of the secretary of the school board and allowed these guests to stay overnight at her apartment. Cliff Rowan, age 26, was a particularly frequent visitor. Rowan’s parents lived in California. He therefore, regularly visited Mrs. Fisher during his school vacation and at other times, and she referred to him as her second son.  In the spring of 1972, Rowan spent about a week in Tyron visiting school classes as a means of fulfilling certain of his college requirements. Mrs. Fisher made arrangements with school administrators for this visitation and it was reported in the local newspaper. Following Rowan’s visit, the school board notified Mrs. Fisher that her contract would not be renewed at the end of 1972 school year. At her request, pursuant to provisions of Nebraska law, the board afforded Mrs. Fisher a hearing relating to the notice of dismissal. Civil right action by school teacher whose contract was terminated because of alleged conduct unbecoming a teacher. The United States District Court for the District of Nebraska, Warren K. Urbom, Chief Judge, ordered reinstatement, and the board members appealed.

FACTS

Nebraska by statute requires that notice and a hearing be given non-tenured teachers who are to be terminated. The appellees concede that the school board, in dismissing Fisher, complied with the statute, and its judgment, therefore, must be afforded judicial deference “so long as the board does not act unreasonably, arbitrarily, capriciously or unlawfully.”

However, a high school teacher may successfully argue that his dismissal  was arbitrary and capricious if he can prove that each of the stated reasons  (underlying his dismissal) is trivial, or is unrelated to the educational process or to working relationships within the educational institution or is wholly unsupported by a basis in fact.

Thus, while a school board may legitimately inquire into the character and integrity of its teachers, it must be certain that it does not arbitrarily or capriciously dismiss a teacher based on unsupported conclusions drawn from such inquiries.

DECISION

That middle-aged divorced  high school teacher, who inquired of school board’s secretary and was advised to keep guests in her one bedroom apartment because other accommodations were limited, had overnight guests did not provide basis in fact for inference by school board of rural Nebraska county district that there was strong potential for sexual misconduct. Thus, inference that teacher’s activity was social misbehavior not conducive to maintenance of integrity of school system was arbitrary and capricious and was an impermissible reason for terminating employment.

DICTA

The Court of Appeals, Bright, Circuit Judge, held that fact that middle-aged divorced high school teacher, who inquired of school board’s secretary and was advised to keep guests in her one-bedroom apartment because other accommodations were limited, had overnight guests did not provide basis in fact for inference by school board of rural Nebraska county district that there was strong potential for sexual misconduct.

Thus, board’s inference that teacher’s activity was social misbehavior not conducive to maintenance of integrity of public school system was arbitrary and capricious and was an impermissible reason for terminating employment. Judgment affirmed.

IMPLICATIONS

High school teacher’s  dismissal is arbitrary and capricious if each of stated reasons underlying dismissal is trivial, or is unrelated to educational process or to working relationships within educational institution or is wholly unsupported by a basis in fact.

Though school board may legitimately inquire into character and integrity of its teachers, it may not arbitrarily or capriciously dismiss teacher based on unsupported conclusions drawn from such inquiries.

     Case Seven

LITIGANTS

BOARD OF REGENTS OF STATE COLLEGES ET AL. – Appellant

v.

David ROTH – Appellee

SUPREME COURT OF THE UNITED STATES

408 U.S. 564 (1972)

BACKGROUND

In 1968, David Roth was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. Roth completed that term. But he was informed that he would not be rehired for the next academic year.

FACTS

David Roth had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “during efficiency and good behavior.” A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for reemployment. State law thus clearly leaves the decision whether to rehire a non-tenured teacher for another year to the unfettered discretion of university officials.

Roth filed suit in court. He alleged that he was not rehired because of statements he made against the University’s administration and therefore it violated his right to freedom of speech. He also alleged that his right to procedural due process (Fourteenth Amendment) was violated when the University officials failed to give him reasons not to rehire him.

DECISION

The District Court granted summary judgment for Roth on the procedural issue, ordering the University officials to provide him with reasons and a hearing. The Court of Appeals, with one judge dissenting, affirmed this partial summary judgment. The only question presented to the Supreme Court at this stage of the case is whether Roth had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not.

The Fourteenth Amendment does not require opportunity for a hearing prior to the non-renewal of a non-tenured state teacher’s contract, unless he can show that the non-renewal deprived him of an interest in “liberty” or that he had “property” interest in continued employment despite the lack of tenure or a formal contract. Here the non-retention of respondent, absent any charges against him or stigma or disability foreclosing other employment, is not tantamount to a deprivation of “liberty,” and the terms of respondent’s employment accorded him no “property” interest protected by procedural due process. The courts below therefore erred in granting summary judgment for the respondent on the procedural due process issue.

DICTA

“The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not.”

“Our analysis of the respondent’s constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for non-retention would, or would not, be appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.”

“We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.”

IMPLICATIONS

A contract is a property only during the term. In this case, Roth did not have a property right beyond its term. Due process is required during the contract or when the contract becomes the property of the employee.

     Case Eight

LITIGANTS

United States Court of Appeals,

Fifth Circuit.

John M. DENNIS, Plaintiff-Appellee

v.

S & S CONSOLIDATED RURAL HIGH SCHOOL DISTRICT

et al., Defendants-Appellants

No. 76 – 3803

BACKGROUND

Suit was brought by the non-tenured public school teacher alleging that manner in which school decided not to renew his contract deprived him of liberty and property without due process in violation of the Fourteenth Amendment. The United States District Court for the Eastern District of Texas at Sherman, William Wayne Justice, J., found that allegations of a drinking problem subjected teacher to “badge of infamy” which violated his liberty interests and ordered administrative hearing, and appeal was taken.

In this appeal, S & S contends that the district court erred in holding that the actions of the school board violated any protected liberty interest. Significantly, S & S has not argued that either the March or the June, 1974, hearings afforded Dennis procedural due process, assuming the existence of a protected liberty interest. Neither party challenges the district court’s holding that Dennis had no property interest in continued employment with S & S.

FACTS

          Appellee John M. Dennis was hired by the Board of Trustees of the Sadler & Southmayd Consolidated Rural High School District (S&S) as a science teacher and high school principal for the 1968-1969 school year. Each year thereafter, through the 1972-1973 school year, S & S voted to renew Dennis’ contract. At the regular school board meeting in February, 1974, however, S & S voted not to renew the one year contract under which Dennis was employed. Although Dennis was given no advance notice of the Board’s February action or the reasons for it, he had previously been involved in several disputes with S & S concerning student discipline. In response to Dennis’ request, the S & S Board of Trustees met publicly in March, 1974, to discuss the non-renewal of Dennis’ contract. Prior to this meeting, Dennis was not given a list of charges against him, the reasons for his non-renewal, or the names of the persons who had made charges against him. At the meeting, the only reason for non-renewal given by the Board as a body was that the action was in “the best interest of the school.” However, individual board members cited their reasons for not renewing Dennis’ contract: “neglected his duties”; “was too inefficient to continue in his position”; had “a drinking problem.” Dennis denied all allegations and later demanded a hearing before the Board in the hopes of clearing his name.

 The Board granted Dennis a hearing, which was held in public on June 3, 1974 and at which substantially the same allegations were made against Dennis as at the March meeting.

DECISION

The Court of Appeals, Simpson, Circuit Judge, held that: (1) teacher, who had no property interest in renewal of his contract, was nevertheless entitled to Fourteenth Amendment due process when school board subjected him to badge of infamy in course of refusing to renew his contract, but (2) teacher was only entitled to opportunity to “clear his name” and was not entitled to retention on school payroll or to back pay since his right to due process did not encompass right to continued employment. Affirmed in part, reversed in part.

DICTA

The critical issue raised by this appeal is whether a non-tenured public school teacher with no property interest in the renewal of his teaching contract is entitled to Fourteenth Amendment due process when the school board subjects him to a badge of infamy in the course of refusing to renew his contract. We hold that he is.

IMPLICATIONS

     Case Nine

LITIGANTS

Supreme Court of Texas.

Gary GROUNDS, Petitioner,

v.

TOLAR INDEPENDENT SCHOOL DISTRICT, Respondent

BACKGROUND

Gary Grounds, a teacher and a head football coach with a losing record was fired by the Tolar Independent School District. He brought suit against the District for breach of contract and for an alleged violation of his civil rights. After lengthy litigation, the District recognized that it mistakenly failed to give him timely notice and a hearing before he was fired. After settling the breach of contract suit, the coach decided to litigate the tort action. The trial court found “zero” damages on the tort action and rendered judgment in favor of the District. The Court of Appeals affirmed.      

FACTS

Petitioner, Gary Grounds, was a teacher and a coach for the Tolar Independent School District (the District) during the 1983-84 school year. In February of 1984, the District notified Grounds that his one-year teaching contract would not be renewed. Grounds’ requests for an explanation of the nonrenewal and for a hearing were denied. Grounds appealed to the Commissioner of Education (the Commissioner) who ordered the District to renew Grounds’ contract for the 1984-85 school year.

The District declined to either abide by or appeal the Commissioner’s order. Grounds then sued the District, alleging both breach of his employment contract and violation of his right to procedural due process. Grounds claimed that the due process violation arose not from the District’s failure to renew his 1983-84 contract, but solely from its refusal to provide him with its reasons for nonrenewal of his contract and a hearing. The parties eventually settled the contract claim, expressly reserving the due process claim for judicial determination, including Grounds’ request for damages and attorneys’ fees.

After a bench trial, the district court concluded that even if Grounds established a due process violation, he sustained no damages as a result. The trial court, accordingly, rendered judgment that Grounds take nothing. The court of appeals affirmed the trial court’s judgment but did so because it concluded that the TCNA does not create a property interest in term contract renewal. As a result, the appellate court did not reach Grounds’ complaint that the trial court’s failure to award damages and attorney’s fees was against the great weight and preponderance of the evidence.

DECISION

Public school teacher whose term contract was not renewed brought action against school district, alleging violation of due process. The 355th District Court, Hood County, Dan B. Grissom, J., held for school district, and teacher appealed. The Court of Appeals, 827 S.W. 2d 10, affirmed and writ of error was sought. The Supreme Court, Cornyn, J., held that school district’s failure to provide reasons for nonrenewal, in violation of term contract Nonrenewal Act, violated teacher’s due process rights. Reversed and remanded.

DICTA

In this case we consider whether the legislature conferred upon public school teachers in Texas a constitutionally protected property interest by virtue of the Term Contract Nonrenewal Act (TCNA). For the reasons set out below, we hold that the legislature did grant teachers a property interest. We, therefore, reverse the court of appeals’ judgment and remand this case to that court for consideration of points of error relating to damages and attorney’s fees not previously addressed.

IMPLICATIONS

Term Contract Nonrenewal Act (TCNA) sufficiently limits school district’s discretion not to renew teacher’s contracts to create property interest in term contract renewal entitled to due process protection, and thus school district’s failure to provide reasons for nonrenewal, in violation of Act, violated teacher’s due process rights.

    Case Ten

LITIGANTS

Robert Johnson – Petitioner

v.

HOUSTON INDEPENDENT SCHOOL DISTRICT – Respondent

BACKGROUND AND FACTS

Robert Johnson’s continuing contract with Houston Independent School District (HISD) was terminated during the 2000-2001 school year. The reasons for Johnson’s termination were his excessive absences, failure to provide proper lesson plans and grade books.

Johnson appealed to the Commissioner of Education. His arguments were that the District’s decision to terminate his contract was not valid because of the lack of substantial evidence. He also argued that the problems regarding his unacceptable lesson plans and grade books could be remediated and the District failed to adopt a standard for excessive absences, when he was referring to his absence on the first day of school without proper notice or excuse.

Ample time was given to the petitioner to correct and improve his grading and lesson plans. Because this time frame was given to him, there was no right to remediation, which raised the level of good cause. The Commissioner defined excessive absences as “those absences for which leave under federal and state law or district policy is not properly invoked” which was constituted as good cause for his termination.

DECISION

Petitioner’s appeal is denied.

DICTA

          .

“Good cause exists for the termination of Petitioner’s continuing contract. Petitioner’s appeal should be denied.”

IMPLICATIONS

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Post from: Best Jobs For The Future

Public School Law & Educational Laws and Policies, Employment Law, Contracts, Due Process, Dr. W.A. Kritsonis

Last year 266,542* employment tribunal claims were made against employers costing £2.6 billion, so; help yourself by reducing your exposure to tribunal claims and costs. (*Employment Tribunal & EAT Statistics April 2008 to March 2009 

Here is a brief guide to business owners and managers who seek to reduce the risks to their organisation resulting from employment legislation in the UK.  It primarily addresses the issue of avoiding conflict and managing it wherever possible in order to minimise disputes that may ultimately be settled at an employment tribunal.  

1. Contracts of Employmet

Under the Employment Rights Act 1996, there is a legal requirement to provide employees with at least one month’s service with a written statement of their terms of service within the first 2 months’ of their employment.  This is a basic statement of an employee’s conditions of service. These requirements are generally insufficient for most employers’ needs and in order to reduce your risk, we recommend that you:

Establish contracts of employment that not only specify employee entitlements but also refer to employee obligations and responsibilities as well as the employer’s rights. This practice is essential as it lays the foundation for an employer’s expectations of its employees, standards of conduct and the employer’s policies and procedures.
Contracts of employment should be written to address issues that impact on your business such as confidentiality, post termination restraint, data protection, health and safety, bullying and harassment, equal opportunities, medical examinations, searches, dress codes, conflicts of interest, inventions and copyright. The inclusion of these issues can help you to protect your business as they define obligations and responsibilities.
Issue contracts of employment before employees start work. This practice provides prospective employees with a clear understanding of their rights, entitlements and expectations before they join and minimises the risk of misunderstanding and possible conflict. Where there are misunderstandings, they can be resolved before the prospective employee starts or alternatively he / she can decline the offer.  It is better that a prospective employee rejects an offer than joins an employer and enters into conflict.

2. Employee Checks

Some prospective employees exaggerate their qualifications or provide incorrect information relating to their employment history.  To reduce the risks to your business, we recommend that you:

Take up employment references from previous employers to confirm an employee’s work history and ask questions about dates of employment, his/her performance and the reason for termination of employment.  Take note where an employer does not answer a question; contact the employer by telephone; you might obtain information that a referee is not prepared to put in writing. Taking references from personal referees serves little practical purpose; no-one is going to provide details of a referee who will offer a bad testimonial.
Ask to see original copies of employees’ educational and professional qualifications; particularly where they are necessary for the job they are required to perform.
Always establish an employee’s right to work in the UK; ask for appropriate evidence. You risk a fine up to £10,000 for employing an individual who has no right to work in the UK or even up to 2 years in prison for knowingly employing an illegal worker.
Consider undertaking pre-employment health checks to determine whether prospective employees are fit to undertake the work you require them to perform or have underlying health problems that may make them unsuitable for employment. Employees rarely reveal their health histories unless they are asked to and checks are undertaken.
Consider using the services of vetting agencies, particularly for employees in senior positions or where their failings can put your business at risk.  Agencies can be used to identify disqualified directors, professional and educational qualifications, insolvent / bankrupt persons, criminal records, individuals with County Court judgements against them etc.

3. Setting Rules & Standards

Reduce the risks resulting from conflict in the workplace; we recommend that you:

Establish a basic set of rules in the workplace to give clarity to employees about their obligations and your expectations in terms of conduct and performance.  These can be expressed in the format of written policies, procedures or an employee handbook. The advantage of doing so is that employees will obtain a clear understanding of their obligations and responsibilities and will be able to offer fewer excuses in circumstances where you need to address issues relating to their conduct or (poor) performance.  These policies and procedures must be kept up to date with changing legislation and business requirements.
Look carefully at the issue of IT in the workplace and ensure you have clearly defined rules in place governing use of IT, e-mail, blog sites and the Internet.  This is a growing area of concern to employers whose IT systems are exposed to the threat of external attack but also to internal abuse.

 4. Managing Performance

There is no excuse for accepting poor performance in the workplace yet, that’s what we often find. Tacit acceptance of an under performing employee is bad for productivity and morale and importantly, such problems are more difficult to manage when you are eventually forced to ‘deal’ with a problem.

Reduce your risk from employment tribunal claims when you address performance issues; we recommend that you:
Deal with poor performance early, don’t let it go unchecked.
Use counselling in the first instance to deal with minor performance issues such as timekeeping, errors and omissions, breach of a rule or obligation.
Set up review meetings to discuss the performance of new employees after an appropriate length of trial period; this will allow you to restate your requirements and provide a formal opportunity for employees to clarify issues and any misunderstandings.
Don’t inadvertently turn a discussion about performance into a disciplinary hearing.
Utilise the disciplinary procedure to address more serious cases of poor performance.

5. Disciplinary & Dismissal Issues

Reduce your exposure to tribunal claims and a maximum compensation award of £65,300 from February 2010 (plus a maximum £11,400 basic award) for unfair dismissal:

Follow the requirements of the ACAS Code of Practice and better still, ensure that you have a written disciplinary procedure in place compliant with the ACAS Code with clearly defined rules relating to conduct. Always inform an employee of the reasons for a disciplinary hearing in advance of a meeting as well as the evidence, allow representation by a work colleague or trade union representation and provide the right of appeal against any disciplinary action you take.
Any failing to follow the ACAS Code in cases of dismissal may result in successful claims for unfair dismissal.  If an employment tribunal finds that you have unfairly dismissed an employee (and you have failed to follow the Code without good reason), it may increase any compensation award payable by up to 25%.

 6. Redundancy

This is a major area of conflict for employers and is governed by legislation and case law; failure to consult and follow a fair process in the selection of employees will result in successful claims for unfair dismissal at an employment tribunal.

Ensure that there is a genuine need for redundancies has arisen and establish how many employees you propose to make redundant.
Where at least 20 or more employees are to be made redundant you must consult with representatives within prescribed timescales as well as notify the Secretary of State; where representatives do not exist, they must be elected from within the group of affected employees. Legislation is silent on the issue of consultation and timescales where less than 20 employees are to be made redundant, case law is not; you must consult individually with all employees ‘at risk’ of redundancy.
Ensure that the employees are given as much warning as possible redundancies and they are given the opportunity of making suggestions and representations to avoid the redundancy situation. Also ensure that consultation is conducted on the basis of proposed redundancies, making it clear that a firm decision will not be made until after the consultation exercise has been completed.
Where redundancies need to be made amongst employees undertaking the same or similar roles you will need to establish a process to determine who from the ‘pool’ of employees should be selected. Identify objective and reasonable selection criteria wherever possible and apply them consistently and fairly. Consultation should also enable employees and representatives the opportunity to make suggestions and representations about the selection criteria and the method of applying them.
Consider whether any alternative jobs are available within the company for those who have been selected.

In the current recession more employers are looking at pay and benefit cuts as an alternative to redundancy; employment tribunals will expect employers to look at reasonable alternatives to redundancy.

Redundancy is a difficult and highly contentious area and it is recommended you obtain the support of an HR professional to assist you in establishing the consultation and selection process. 

7. Grievances

Reduce your exposure to conflict in the workplace and the risk of compensation claims:

Follow the requirements of the ACAS Code of Practice when dealing with grievances in the workplace even when they are not put in writing. Follow the Code, allow representation and the right of appeal against any decision you take where the individual is still in employment.
Look for signs of grievances in letters of resignation and offer a meeting to discuss their departure; such grievances might be considered reasonable grounds for constructive dismissal claim at an employment tribunal. Always make such offers to meet and discuss grievances in writing.

8. Discrimination

Discrimination on the grounds of age, disability, race, sex, sexual orientation, gender reassignment, marital status, part time employee status, religion or belief is illegal in the UK and this is a real risk area as the compensation available for successful discrimination claims is totally £ unlimited. 

Reduce your exposure:

Be aware that you can be held liable for the actions of your employees (vicarious liability) where discrimination occurs in the course of employment, irrespective of whether or not you know or approve of it.
Address the issue of discrimination in employment policies and procedures and ensure they are understood and followed by employees.
Ensure that you don’t inadvertently discriminate against women returning to work following a period of maternity leave; any failure to follow Maternity Regulations can result in discrimination claims.
Ensure that you don’t discriminate against employees reaching their retirement age; follow the requirements of the Employment Equality (Age) Regulations 2006 and avoid discrimination claims.

Remember discrimination claims can also be made by job applicants; make sure the reasons for not offering a job or even an interview are objectively based decisions as your decisions are open to challenge. This is going to be more important with age based discrimination claims which can be brought against employers.

Discrimination claims are highly contentious and it is recommended you obtain the support of an HR professional to assist you where such claims arise to assist in the investigation and management process.

9. Maintain Employee Records

Regulations specify what records an employer must retain and how long they have to be retained; good record keeping reduces your risk:

Maintain employee records / files and observe the requirements of the Data Protection Act.
Keep copies of correspondence relating to employees terms and conditions of employment including offer letters, contracts of employment and changes to terms and conditions that you have agreed.
Where an employee agrees to a change to his / her terms of service ensure it is put in writing and obtain confirmation of acceptance from the employee.

Reduce your risk from disputes and employment tribunal claims:

Keep notes on issues about employee performance that concern you.  One issue on its own may not require informal or formal action on your part but with time you may detect a pattern of events or employee performance that does require your intervention; you will be able to draw upon your record of observations to support your position.
Write and retain notes on informal meetings relating to counselling sessions or performance issues; you may need them if you are forced to undertake formal disciplinary action – record details on the date, time, issue, outcome and who was present.
Write and retain notes on all formal meetings relating to disciplinary events and grievance hearings; you may need them as part of your defence in any subsequent employment tribunal claim. Contemporaneous written notes are of more value in tribunal hearing than memory of such meetings.

10. Get Help Before Acting

Managing employees is a difficult business particularly with legislation which covers virtually every aspect of employment from recruitment to termination not to mention the changes resulting from tribunal cases and constant revision to existing Regulations.  Minimise your risk by following the Regulations and seek assistance if necessary before acting:

Beware of articles on the Internet, many are inaccurate and out of date; they often tell you ‘what you have to do’ but not ‘how to do it’.
Seek assistance from an experienced HR professional who can review an issue, give advice on options where they exist and support you in resolving problems or offering solutions before you act.   Acting after the event exposes you to compensation claims and solicitor’s costs which will be more expensive than an HR Consultant’s.

Today there are 70+ different types of claim that an individual can take to an employment tribunal; pursuing claims is free and claims can be submitted on-line and note, that there is an army of solicitors prepared to pursue genuine and frivolous claims against employers on a ‘no win, no fee’ basis.  Typically individuals pursue multiple claims and whilst one or two might have reasonable grounds, the others often lack credibility and are thrown in for the sake of completeness to try to build a case.

Unsurprisingly the majority of cases settle before an employment tribunal hearing and the decision to make an out of court settlement is often commercially based to avoid legal fees, management costs and the prospect of bad publicity. Winning at an employment tribunal is often a hollow victory because of the time and expense spent on a case; however, employers that always ‘settle out of court’ can be seen as a ‘soft touch’.

Smaller employers lose more often in employment tribunals than their larger counterparts because larger employers tend to have ‘in-house’ personnel systems and resources. Observing these 10 points won’t stop employees making claims but if you develop good employment systems and get help before acting, you can minimise your risk to claims for compensation and legal costs; you will also have gone some way to developing good employment practices that support and help to grow your business.  Tribunals are won in the workplace not the courtroom and as such employers need effective employment policies and procedures

Post from: Best Jobs For The Future

Employment Legislation – 10 Ways to Minimise Your Risk Exposure

DICSCRIMINATON AND RELATED RIGHTS IN THE WORKPLACE

Equal opportunities workplace discrimination in sex discrimination cover sexual orientation, same-sex prejudice, adoption, paternity, maternity, parental, dependant leave, marital status, equal pay; race relations employment discrimination ethnic relations, religious discrimination, nationality, citizenship; discriminatory practices, disability discrimination.

Sex equality, race relations, disability work rights in employment discrimination laws are:-

A. It is employment discrimination contrary to nondiscrimination policy, unlawful prejudice, to treat employees e.g. working women, colored, foreign workers less favorably than others ~this is the basis of equal opportunities, nondiscrimination laws, in workplace discrimination, be it gender equality, racial equality, disability rights in employment -applying employment discrimination rights is illegal.

B. It is illegal workplace victimization to penalize one for complaining or inquiring about or doing anything in good faith in relation to employment discrimination -be it about discriminatory practices of e.g. gender prejudice or sexual orientation or ethnic relations, even if there has not been, and even if the employer retaliation is not itself employment discrimination ~causing detriment after employment ends also is employment discrimination.

Important details of employment discrimination are:-

Equal Opportunities are not minority rights, or women’s rights only ~it is equally illegal employment discrimination for e.g. black or women employers to subject to racial inequality or gender discrimination or sexual harassment a white an employee -in ethnic relations it is employment discrimination whether the employer belongs to a dominant majority group or a minority group.

Lawful prejudice is possible: in employment discrimination, whether it is race relations, ethnic relations, or sex equality, employers are entitled to employment discrimination in recruitment by preferring a particular racial or ethnic or gender or sexual orientation class to ensure fair gender equality or racial equality respecting nondiscrimination policy ~non-employment of the disabled is legal employment discrimination if workers are less than 20 -or if a legal musts, e.g. safety helmet for Sigh bike messenger.

Segregation, racial or ethnic, is not unlawful employment discrimination if genuinely otherwise it would disrupt ~in gender equality it is not illegal employment discrimination but lawful discriminatory practice to provide separate one-sex facilities to avoid embarrassment -it is also legal employment discrimination if it would offend a sizable faith.

Otherwise racial segregation can make liable in employment discrimination as race discrimination -if it arises from an employment discrimination complaint, additionally, also as employment victimization.

Employment victimization if is due to, e.g., gender prejudice, an employment discrimination complaint must have preceded it – Negorajam -v- Agnew, 1994.

Workplace harassment, be it sexual, religious or belief, ethnic or racial harassment, is more than employment discrimination -it can be, additionally to employment discrimination, a criminal offence ~also if it is only employment discrimination and on its own not of criminal nature, if persisted in, in employment or after termination.

Sex harassment or racist abuse by a colleague is not workplace harassment as employment discrimination if not in course of or at place of work nor related to work -action lies in equal opportunities but not as employment discrimination.

Workplace harassment, e.g., sexual harassment, is required in employment discrimination case-law to be shown to have adversely affected one’s dignity – Porcelli -v- Stratchlyde Rural District Council, 1980.

Religious or Belief Discrimination it is in equal opportunities and employment discrimination, because of one’s religion or belief, to apply a condition on the assumption that a law would not be respected -e.g. an undertaking that Sigh builders would wear helmets at all times, or that a Sigh judge would wear instead of his turban the wig worn in British courts of law.

Degrading treatment (which the above would also be) in employment discrimination under the race relations legislation (racial victimization -or religious, ethnic, color, nationality, citizenship) takes into account what the complainant considers to be degrading.

Age Discrimination may also be complained of, if employee or candidate may is refused employment because of his or her age, or in employment if is less favourably treated or subjected to victimization.

Disability discrimination while it is, in employment discrimination legislation, to not provide some 30% disability work for disabled employees in a workforce of 20 or more -with appropriate work and equipment and workplace adjustments, disability discrimination is subject to employment discrimination precedent and the courts may regard an employer’s failure in special interviewing arrangements not a discriminatory practice amounting to employment discrimination but failure of the disabled job applicant, even if the special arrangements need was stated on the application and details were never asked, if disabled persons fail to specify them .

Disability discrimination is legal if the workforce is less than 15 ~also if of indirect effect on disabled workers -it is employment discrimination only if it affects directly.

Disabilities do not entitle to equal rights or disability rights in disability employment discrimination unless for a year seriously disabled in ordinary daily activities -else it is not employment discrimination.

Genuine occupational qualification excuses employment discrimination -in equal opportunities employment rights it is a genuine occupational qualification is one that does not unjustly disqualify an entire class of, e.g., female workers or married women employees, or staff transsexual or of a different sexual orientation, or alien workers ~in employment discrimination such proof is on the employer in sex or race discrimination claims – Panesaar -v- Nestle 1980.

Grading of employees vulnerable to employment discrimination -e.g. of working women or black or immigrant workers, may be complained of as employment discrimination ~employer must show that were not taken into account personal factors, e.g. a working woman likely to take maternity leave or a single parent working girl, in assessing – National Vulcan Engineering -v- Wade, 1977.

Maternity leave, paternity or parental or adoption or dependant leave, in employment discrimination laws are for all -married, partner, or neither ~if it is agreed contractually, employment discrimination laws forbid employers to prefer the contractual or the statutory entitlement -in equal opportunities applicable to employment discrimination employees choose which.

Comparison must be made if one is directly subjected to employment discrimination to show that employment discrimination to have been by way of less favorable treatment of the complainant than other workers – Aziz -v- Trinity Taxis, 1998.

Less favorable treatment complained of as employment discrimination must have taken place at the workplace or must be in relation to employment, otherwise it is not employment discrimination ~in ethnic relations, e.g., employer’s excluding from a house-warming party is not equal opportunities race equality breach of nondiscrimination policy -but it is employment discrimination if from a workers’ office party – Walters -v- Metropolitan Police, 1997.

Equal pay if the employment discrimination has been in respect of, it is inessential for comparison to be of identical work -in employment discrimination precedent similar work suffices, e.g., a single working girl’s work and a married working woman’s like work – Hayward -v- Canwell Laird Shipyards, 1977.

Internal Appeal offer in employment discrimination must precede worker’s dismissal, if made – James -v- Waltham Holy Cross Urban District Council, 1973.

Claims for employment discrimination or, e.g., sexual harassment or color victimization must allege so -if the worker only claims only unfair dismissal the qualifying period may bar an, e.g., race equality employment discrimination case exempt from the qualifying period requirements – British Airways Engine Overhaul -v- Francis, 1981.

Qualifying period for suing does not apply to employment discrimination and workplace harassment -no particular length of service need be shown to sue for employment discrimination ~also so in equal opportunities workplace victimization.

Time limit does apply -in employment discrimination legal proceedings must be commenced within three months of the equal opportunities breach or of when the employment discrimination, or the employment discrimination victimization, became known – Cornelius -v- University College -Swansea 1987.

Questionnaires are part of equal opportunities claims in employment discrimination whether sex discrimination, color prejudice, workplace harassment, or employment victimization ~one may serve one on the employer and use answers or non-reply in arguing employment discrimination.

Amendments may be allowed by employment tribunals to employment discrimination complaints, only if are about a matter included in the in employment discrimination particulars – Swiss Life & Health Insurance -v- Kay, 2004.

Additional claims based on same employment discrimination also so – Ashworth Hospital -v- Liebling, 1996.

Onus of proof in employment discrimination is the complainant’s on a balance of probabilities ~regard to employer’s reasons for the alleged employment discrimination can reverse that – Humphrey’s -v- Board of Management of St. George’s School, 1978.

The European Court of Justice has ruled in employment discrimination cases that there is no limit on what may be awarded for injury to feelings in claims arising from workplace discrimination.

Costs may be involved if a party, including the complainant, has been vexatious, frivolous, or “otherwise unreasonable” –normally, in the course of or in relation to the proceedings.

Laws change; these are brief guidelines.

Post from: Best Jobs For The Future

Workplace Discrimination & Related Rights in Employment

(Promulgated jointly by the Ministry of Labour, Ministry of public Security?Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation of the People’s Republic of China on 22 January 1996?

    Chapter l General Provisions

    Article 1 These Rules are formulated in accordance with the provisions of the relevant laws and decrees for the purpose of strengthening the admiministration of employment of foreigners in China

    Article 2 The term “foreigners”in these Rules refers to the persons?who under the Nationality Law ont1e People’s Republic of China, do not have Chinese nationality? The term “employment of foreigners in China” in these Rules refers to acts of foreigners without permanent residence status to engage in remunerative work within Chinese territory in accordance with it laws?

    Article 3 These Rules shall apply to employed foreigners within Chinese territory and their employers? These Rules shall not apply t?foreigners who enjoy diplomatic privileges and immunities employed by foreign embassies or consulates?or the offices of the United Nations and other international organizations in China?

    Article 4 The labour administrative authorities of the people’s govemmer1t of the provinces?autonomous regions and municipalities directly under the Central Government and those at the prefecture and city level with their authorization are responsible for the administration of employment of foreigners China.

    Chapter II Employment License

    Article 5 The employer shall apply for the employment permission if it intends to employ foreigners and may do so after obtaining approval and The People’s Republic of China Employment License for Foreigners?hereinafter referred to as the “Employment License”).

    Article 6 The post to be filled by the foreigner recruited by the employer shall be the post of special need?a post that cannot be filled by any domestic candidates for the time being but violates no government regulations No employer shall employ foreigners to engage in commercialized entertaining performance? except for the persons qualified under Article 9?3?of these Rules?

    Article 7 Any foreigners seeking employment in China shall meet the following conditions? ?1?18 years of age or older and in good health ?2?with professional skills and job experience required for the work of intended employment? ?3?with no criminal record? ?4?a clearly-defined employer; ?5?with valid passport other international travel document in lieu of the passport?hereinafter referred to as the “Travel Document”).

    Article 8 Foreigners seeking employment in China shall hold the Employment Visas for thew entry?In case of agreement for mutual exemption of visas?the agreement shall prevail.), and may wok within Chinese territory only after they obtain the Employment Permit for Foreigner?hereinafter referred to as the”Employment Permit”?and the foreigner residence certificate Foreigners who have not been issued residence certificate (i.e. holders of F?L?C or G-types visas??and those who are under study or interim programs in China and the families of holders of Employment Visas shall not work in China?In special cases?employment may be allowed when the foreigner changes his status at the public security organs with the Employment License secured by his employer in accordance with the clearance procedures1under these Rules foreigners changes his status at the public security organs with the Employment License and receives his Employment permit and residence certificate? The employment in China of the spouses of the Personnel of foreign ernbassies, consulates?representative offices of the United Nations System and other international organization in China shall follow the Provisions of Ministry of Foreign Affairs of the People’s Republic of China Concerning the Employment of the Spouses of the Personnel of Foreign Embassies?Consulates and the Representative Offices of the United Nations System in China and be handled in accordance with the clearance procedures provided for in the second paragraph of this article. The Employment License and the Employment Permit shall be designed and prepared exclusively by the Ministry of Labour.

    Article 9 Foreigners may be exempted from the Employment License and Employment permit when they meet any of the following conditions? ?1?foreign professional technical and managerial personnel employed directly by the Chinese government or those with senior technical titles or credentials of special skills recognized by their home or international technical authorities or professional associations to be employed by Chinese government organs and institutions and foreigners holding Foreign Expert Certificate issued by China’s Bureau of Foreign Expert Affairs??2?foreign workers with special skills who wok in offshore petroleum operations without the need to go ashore for employment and hold”Work Permit for Foreign Personnel Engaged in the Offshore petroleum Operations in the people’s Republic of China”? ?3?foreigners who conduct commercialized entertaining performance with the approval of the Ministry of Culture and hold “permit for Temporary Commercialized Performance”.

    Article 10 Foreigners may be exempted from the Employment License and may apply directly for the Employment Permit by presenting their Employment Visas and relevant papers after their entry entry when they meet any of the following conditions: ?1?foreigners employed in China under agreements or accords entered into by the Chinese government with foreign governments or international organizations for the implementation of Sino-foreign projects of cooperation and exchange? ?2?chief representatives and representatives of the permanent offices of foreign enterprises in China.

    Chapter III Application and Approval

    Article 11 The employer When intending to employ a foreigner?stall fill out the Application Form for the Employment of Foreigners?hereinafter referred to as the”Application Form”?and submit it to its competent trade authorities at the same level as the labour administrative authorities together with the following documentations? ?1?the curriculum vitae of the foreigner to be employed? ?2?the letter of intention for employment? ?3?the report of reasons for employment? ?4?the credentials of the foreigner required for the performance of the job? ?5?the health certificate of the foreigner to be employed; ?6?other documents required by regulations? The competent trade authorities shall examine and approve the application in accordance with Arides 6 and 7 of these Rules and relevant laws and decrees.

    Article 12 After the approval by the competent trade authorities?the employer shall take the Application Form to the labour administrative authorities of the province?autonomous region or municipality directly under the Central Government or the labour administrative authorities at the prefecture and city level where the said employer is located for examiexamination and clearance?The labour administration authorities described above shall designate a special body?hereinafter referred to as the”Certificate Office”) to take up the responsibility of issuing the Employment License?The Certificate Office should take into consideration of the opinions of the competent trade authorities and the demand and supply of labour market?and issue the Employment License to the employer after examination and clearance.

    Article 13 Employers at the Central level or those without the competent trade authorities may submit their application directly to the Certificate Office of the labour administrative authorities for the Employment Permit. The examination and approval by the competent trade authorities is not required for foreign-funded enterprises to employ foreigners?and such enterprises may submit their applications directly to the Certificate Office of the labour administrative authorities for the Employment License?bringing with them the contract, articles of association, certificate of approval, business license and the documentation referred to in Article 11of these Rules.

    Article 14 Employers with permission to employ foreigners shall not send the Employment License nor the letter of visa notification directly to he foreigners to be employed1and they must be sent by the authorized unit.

    Article 15 Foreigner with permission to work in China should apply for Employment Visas at the Chinese embassies?consulates and visa offices, bringing with them the Employment License issued by the Ministry of Labour?the letter or telex of visa notification sent by the authorized unit and the valid passport or Travel Document. Personnel referred to in Article 9?1?of these Rules should apply for the Employment Visas by presenting their letter or telex of visa notification by authorized unit?personnel referred to in Article 9?2? should apply for the Employment Visas by presenting their letter or telex of visa notification issued by the China National Offshore Oil Corporation; personnel referred to in Article9?3?should apply for the Employment Visas by presenting their letter of telex of visa notification issued by the foreign affairs, office under the people’s government of privinces, autonomous regions or municipalities directly under the Central Government and the relevant documents of approval of the Ministry of Culture (addressed to the Chinese embassies?consulates or visa offices). Personnel referred to in Article 10?1?of these Rules should apply for the Employment Visas by presenting their letter or telex of visa notification by authorized unit and the documentation on projects of cooperation and exchange?personnel referred to in Article 10?2?should apply for the Employment Visas by presenting their letter or telex of visa notification by the authorized unit and the registration certification issued by the administrative authorities of industry and commerce

    Article 16 The employer should?within fifteen days after the entry of the employed foreigner take to the original Certificate Office the Employment License the labour contract with the said foreigner and his passport or Travel Document to receive his Employment Permit while filling out the Foreigner Employment Registration Form. The Employment Permit shall be effective only within the area specified by the Certificate Office?

    Article 17 Foreigners who received their Employment Permit should?within thirty days after their entry?apply for the residence certificate with the public security organs bringing with them their Employment Permit. The term of validity of the residence certificate may be determined in accordance with the term of validity of the Employment Permit?

    Chapter IV Labour Adn1inistration

    Article 18 The employer and its foreign employee should?in accordance with law?conclude a labour contract?the term of which shall not exceed five years Such contract may be renewed upon expiration after the completion of clearance process in accordance with.

    Article 19 of these Rules? Article 19 The Employment Permit of the employed foreigner shall cease to be effective upon the expiration of the term of the labour contract between the foreigner and his employer?If renewal is required?the employer should?within thirty days prior to the expiration of the contract?submit an application to the labour administrative authorities for the extension of term of employment?and after approval is obtained?proceed to go through formalities for the extension of the Employment Permit.

    Article 20 The foreign employee should?within ten days after obtaining the approval for extension of his term of employment in china or t he change of his employment location or his employer, go through formalities for the extension or change d his residence certificate at the local public security organs.

    Article 21 After the termination of the labour contract between the foreign employee and his employer?the employer should promptly report it to the labour and public security authorities?return the Employment Permit and the residence certificate of the said foreigner?and go through formalities for his exit from China

    Article 22 The wage paid to the foreign employee by the employer shall not be lower than the minimum wage in the locality.

    Article 23 The working hours?rest and vacation?work safety and hygiene as well as the social security of the foreign employees in China shall follow the relevant provisions of the state.

    Article 24 The employer of the foreign employee in China shall be the same as specified in hlis Employment License? When the foreigner switches employers within the area designated by the Certificate Office but stays in a job of the same nature?the change must be approved by the original Certificate Office and recorded in his Employment Permit. If the foreigner is to be employed outside the area designated by the Certificate Office or switch employer within original designated area while taking up jobs of a different nature?he must go through formalities for a new Employment License

    Article 25 For foreigner whose res1dence status is revoked by public security organs due to his violation of Chinese law, his labour Contract should be terminated by his employer and his Employment Permit be with drawn by the labour administrative authorities

    Article 26 Should the labour disputes arise between the employer and its foreign employee? they should be handled in accordance With the Labour Law of the People’s Republic of China and the Regulations of the people’s Republic of China on Settlement of Labour Disputes in Enterprises

    Article 27 The labour administrative authorities shall conduct an annual inspection of the Employment Pemrit Within thirty days prior the end of every year of employment of the foreigner?the employer should go through formalities of the annual inspection at the Certificate Office of the labour administrative authorities The Employment Permit shall automatically cease to be effective when the deadline is passed. In case of loss or damage of the Emp1oyment Permit during the term of his employment in China the foreigner should promptly report it to the original Certificate Office and go through formalities for the issuance of the Employment Permit.

    Chapter V Penalty Provisions

    Article 28 Violatlon of these Rules?i. e. Foreigners who work without the Employment Permit or employers which hire foreigners without the Employment License, shall be handled by the public security organs in accordance with Article 44 of the Rules Governing the lemplementation of the Law of the people’s Republic of China on the Entry and Exit of Aliens.

    Article 29 For foreigners who refuse to have their Employment Permit inspected by the labour administrative authorities?change their employers and professions at will or extend their term of employment without permission1 the labour administrative authorities shall with draw their Employment permit and recommend that their residence status be canceled by the public security organs in case of deportation, the costs and expenses shall be borne by the said foreigner their employers.

    Article 30 For foreigners and employers who Forge, after, falsely use, transfer, buy and sell the Employment Permit and the Employment License, The labour administrative authorities shall take over the Employment Permit and the Employment License in question, confiscate the illegal proceeds and impose a fine between the thousand and one hundred thousand RMB Yuan. In serious cases whi-ch constitute a crime, their criminal responsibility of the perpetrators shall be looked into bythe judicial authorities.

    Article 31 in case of abuse of power, illegal collection of fees, and fraudulent practices on the part of official personnel of the Certificate Office or other department, they shall be investigated in accordancewith the law for their criminal responsibility if crimes are committed, or they shall be subject to administrative disciplinary measures if the cases do not constitute a crime.

    Chapter VI Supplementary Provisions

    Article 32 The employment in the mainland of the residents of Tai Wan, Hong Kong and Macao region of China shall follow the Rules for the Administration of he Employment in the Mainland of Residents of Tai Wan, Hong Kong and Macao.

    Article 33 These Rules do not apply to the employment of foreigners in China’s Tai Wan Hong Kong and Macao region.

    Article 34 Individual economic organizations and private citizens are prohibited from employing foreigners.

    Article 35 The labour administrative authorof the provinces?autonomous regions and municipalities directly under the Central Govemmer1t may formulate their own rules for implementation of these Rules in conjunction with the public security and relevant authorities in the locality?and report it to the Ministry of Labour?Ministry of Public Security? Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation for putting on record.

    Article 36 The Ministry of Labour shall be responsible for the interpretation of these Rules?

    Article37 These Rules shall enter into force as of 1 May 1996?The Provisions Concerning the Employment in China of the Foreigners Who Have Not Yet Obtained Residence Certificate and Foreigners Who Study in China jointly promulgated by the former Ministry of Labour and Personnel and the Ministry of public Security on 50 October 1987 shall be annulled simultaneously.

Tommy China Business Consulting based on ShenZhen China can offer Work Visa and Residence Permit application service to foreign nationals . We are familiar with the application procedures and the applicable chinese law. We can look after the issues and complications of obtaining work visa and residence permit

CONNECT EMPLOYMENT SERVICES INC. is a not-for-profit employment service for adults with intellectual disabilities. Our community is enriched when all members of the community are encouraged to participate to their fullest potential, and have opportunity and supports that enable them to do so. For our community to continue to flourish, it must embrace and encourage the growth of all of its citizens, including people with intellectual disabilities.
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RULES FOR THE ADMINISTRATION OF EMPLOYMENT OF FOREIGNERS IN CHINA

There are many companies that specialize in pre-employment background checks. It is outside the purpose of this fact sheet to identify background checking companies by name. The most important thing to keep in mind is that Employment Background check companies fall into several broad categories. This can range from individuals commonly known as “private investigators,” to companies that do nothing but employment screening, and to online data brokers.

Corporations that employ large numbers of people may have an established relationship with a third-party background checking company or may even use an affiliated company for their employment screening. Other background checking companies may work on a less formal basis with employers. There are about several companies that conduct employment screening and thousands others nationwide, including private investigators.

There are certainly a number of sites that offer free online criminal background check information and procedures, but with the advantage of easy access to this information, there lies a downside. Criminals and thieves also now have easy access in acquiring your personal information; identity theft had become rampant with the implementation of this new system. Crooks are finding more and more ways to fish out personal data from a lot of places.

With the information age upon us, it is easy for employers to gather background information themselves. Much of it is computerized, allowing employers to log on to public records and commercial databases directly through dial-up networks or via the Internet. Finding one of these online companies is as easy as using an Internet search engine to find web sites that specializes in “background checks.” Employers should beware of companies advertising on the Internet that they can “find everything about anyone.” They are not necessarily going to be in strict compliance with federal and state laws, especially the provisions that require accuracy of background check reports.

Are you interested to read more on the Employment Background Check? If you are, then get more information from Employment Background Check!

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Employment Background Screening Online

With employment training costs on the rise, it is more important than ever for employers to carefully screen prospective employees to avoid wasting resources on candidates who will not ultimately succeed in passing a drug test. Employers also need fast turnaround and accurate reporting of drug testing results to avoid wasting time waiting for results and wasting money on errors. Employers need reliable, accurate information from quality vendors communicated quickly to keep the process moving.

Unfortunately, ordering and tracking pre-employment drug tests for candidates can be both confusing and time-consuming, often requiring Human Resources personnel to track the status and results of multiple screenings for each candidate across multiple vendors. Even if the vendors have websites that enable employers to check the status and results of drug tests online, learning each vendor’s system and tracking login information is difficult enough without having to track which screenings from which vendors have been ordered for which candidates and when results might be available.

But the burden of ordering and tracking drug testing, while necessary, doesn’t have to cost employers more by requiring excessive time and effort by Human Resources personnel in addition to the cost of the tests themselves. Thanks to advances in technology, smart employers can now find the variety of tests they want administered by a quality vendor they trust with the fast results notification they need.

Pre-Employ.com makes the whole process simple, providing an always-available, simple-to-use solution that makes ordering and tracking drug screening and other pre-employment background checks for multiple candidates fast and easy. Pre-Employ.com’s 24/7 Client Portal gives employers the ability to order and track a wide variety of tests, conducted at one of over 12,000 collection sites nationwide, and to receive expedited reporting of results via email or from the Client Portal dashboard.

In addition to the ability to manage drug screenings for multiple candidates in one always-available place, Pre-Employ.com offers a suite of other easy-to-manage pre-employment background checks. For more information on our drug screening services, please visit http://www.pre-employ.com/drug_screening_tests.aspx, and to learn more about our other background screening services, go to http://www.pre-employ.com/OurServices.aspx.

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Mitigating the Burden of Pre-Employment Drug Testing on Human Resources Personnel

Human Resource professionals are challenged to meet many demands for their valuable time and services. A routine but necessary duty is the responsibility to provide employment and income verifications. There is a cost associated in terms of time and materials to provide this service. Estimates range from approximately .00 to as high as .00 per request. Human Resource professionals are asked to provide a wide range of other duties that have far greater value to the business or organization. A great time management principle is to learn to delegate tasks whenever feasible and appropriate.

There are options available to Human Resources as it relates to verification of employment and income requests. Outsourcing this responsibility to other trained professionals will allow for other duties such as hiring and consulting on employment related issues to take the priority they deserve in terms of time and effort. The solution to the problem can be found with the professionals at Past-Employ.com. Past-Employ.com, a member of the Pre-Employ.com family of companies, has been in existence since 1994 with the focus being on providing verification of employment and income services for busy Human Resource professionals in businesses and organizations. A visit to the Past-Employment.com website http://www.past-employ.com will reveal why outsourcing verification of employment and income makes sense from a time management standpoint.

The benefits obtained from outsourcing to Past-Employ.com extend beyond the savings in terms of time management. The business model utilized by Past-Employ.com requires that when a person outside of the business or organization requires past employment verification, they are charged a small fee for the service. A percentage of the fee is shared with the business or organization. Past-Employ.com is the only vendor on the market to offer this revenue sharing system. Visit http://www.past-employ.com/OurServices.aspx to discover how to turn verification of employment and income requests from a business cost into a revenue enhancer!

These are just a few of the reasons for utilizing the professional services of Past-Employ.com. Visit http://www.past-employ.com to learn more. Now is the time to free Human Resource professionals for other more crucial duties. The solution is Past-Employ.com.

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A Solution to Verification of Employment and Income Demands on HR

Have you ever noticed that just about every job advertisement for a full time job specifies that you must have experience? How do you get experience if you can get a job? One way of getting the experience you need to land a permanent position is to apply for temporary jobs that require your particular qualifications. When the job is finished you have the experience and another reference to add to your resume. A temporary job is also a good opportunity for you to see if you like working in a specific environment and to add to your repertoire of skills.

Working in a temporary job is also the perfect way to earn money if you don want to commit to full time employment when you are attending college or if you want a second job to help you save up some money or to pay expenses. These jobs are available in both skilled and unskilled areas. For some jobs, you will need to have a college education and for others you may only need to have a high school education or less.

Many employers that hire temporary employees also offer benefits, which is a plus. These benefits could include holiday pay, medical and dental coverage and life insurance. When you apply for a job you can inquire about the benefit package that the company offers its temporary employees or if you answer an ad, it may state in the ad that there are benefits included in the package.

With the uncertainty in today economy, many employers who would usually offer full time employment are opting for temporary or contract jobs instead. This gives them the chance to be able to get smaller jobs done over a period of time without having to make a commitment of hiring workers for the long term. They often state that a contract can be renewed after a successful term of work.

With temporary employment you can choose when and where you want to work. If you are attending school or if you have commitments at home that prevent you from working certain hours, most employers are quite willing to arrange your schedule according to the hours when you are available for work. For example, if you are a mother with children attending school, you might want to work only during school hours with your weekends and holidays off.

In most companies, even though you are a temporary employee, you may actually work full time hours and the position may turn into a permanent position after you have proven that you are well able to do the work required. By accepting a temporary job, this could be a stepping stone to getting the job you always wanted when you pay your dues by working part time. You will be well positioned to move into a permanent position when one becomes available in the company.

It is an easy task to apply for a temporary job. There are many temp agencies that will help you find work. In addition, you will find ads for such work online, in newspapers and even in postings at your school and in the supermarket. Some locations may have signs posted outside letting everyone know they are looking to hire workers in temporary positions.

If you’ve ever wondered about what a particular person did in the past, you might have thought about doing a background check. After all, doing so can give you full information on anyone’s history.

While in years past a detective agency or private investigator was required to put together all the information, it’s not that way anymore. Thanks to the Internet, we now have the ability to learn about anyone’s background without leaving our desks.

There are a number of reasons for people to run background checks. They may need to check the background of a potential employee, or perhaps you’ve run into someone or someone in your family is seeing someone you’re curious about.

Lots of people even do a background check on their own histories. This shows them what other people will see, and it helps them make sure it’s all accurate. If you find any errors, you can easily get the right contact information and correct the problem.

Companies have created enormous online databases of information on people’s backgrounds and of their public documents. These can be searched, and are able to provide information to everyday users.

Background checks can usually tell you a lot about a person. Some of the things you might get out of a background check include a person’s credit rating and report, their criminal background, where they’ve lived, employment history and marriage history. It’s simple to find out all about someone using this kind of search.

You probably won’t be surprised by the fact that you have to pay a little bit to run this kind of check. However, if you’re not sure you want to sacrifice any money yet, there’s one thing you can do beforehand.

To see what kind of information you can get, all you do is bring up your favorite search engine and enter the name of the person you’re interested in, as well as where they live. Remember to put the name in quotations and the city name outside them. Now, see what your get.

There’s a pretty good chance that you won’t find anything useful this way – be aware. That’s because so many people have the same name that it’s hard to figure out what’s accurate for the person you’re looking for. In depth information may also be hard to find, but this kind of search is easy and free, so it’s worth a shot.

If you aren’t able to find any information using this method, there are other options. Choose a background check provider that has a money back guarantee and you’ll be able to be sure you won’t have to pay if you can’t find what you want.

The other great idea is looking for companies that only charge you once. You’ll pay a flat fee for full membership privileges and the ability to do as many searches as you like, rather than paying each time.

Online background checks give you the ability to feel like a private investigator in the comfort of your own home. This is the simple way to get all the information about anyone you’re curious about.

Post from: Best Jobs For The Future

Running Criminal Background Checks

There are actually a lot of legit jobs that you can get online. The job that will provide the most reward is the one that will give you more money in proportion to the effort you expend on the opportunity.

The best way to make money online is to create something of value. People will come handing you their money if you put something on the internet that has value. There are also some data entry and call center jobs that you can do from home. Some with sales and some with service. You just need to be savvy about finding these jobs or creating a product that adds value to the marketplace.

What is it that people value? There are a lot of things, but you are looking for something that would benefit most people in your niche. People make purchasing decisions based on what will give them the most value. The internet is packed full of information about legit online jobs and opportunities. Each day more people use the internet to find information that they need, and most are willing to pay for it.

If you have any training at all in a field you may check out freelance websites to find work. These websites are great for connecting people looking for workers and the people willing to do the work. You can also find forums where you can communicate with people who have already found legit online jobs.

The forums are usually very helpful and you might be able to find an online job there. Some employers use forums to recruit people to work from home. There are a lot of opportunities in the online marketplace. If you are looking to do some extra work in your spare time then legit online jobs is ideal for you.

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How to Find Legit Online Jobs