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One of the lowest performing schools in Rhode Island fired all of its teachers, personnel, and administrators last month, as part of a major overhaul ordered by the state education commissioner.
The school's superintendent acted in accordance with the federal/state intervention protocol, which requires that states identify schools with chronically poor performance and low graduation rates — and reform the schools via one of four options: school closure; takeover by a charter or school-management organization; longer school hours; or termination of entire teaching staff, with no more than 50 percent re-hired.
"Whenever an employer, even a public entity, implements a mass firing or layoffs, the risk for employment practices liability (EPL) claims increases exponentially," noted Adeola Adele, Marsh U.S. Employment Practices Liability Leader. "The larger the number of employees affected by a mass firing or layoff, the more susceptible the employer is to individual and class action claims. Schools and their boards may have a heightened exposure under these circumstances because of issues related to tenure, involvement of the union, as well as the ongoing fiscal crisis that has made reemployment more difficult for teachers and other school officials.
"Although the Rhode Island school's action may be defensible and subject to protection under the Eleventh Amendment's sovereign immunity, it is not entirely immune from potential EPL claims as a result of the firings," explained Adele. "The United States Supreme Court has held that employees of public entities are not barred from bringing suits alleging certain violations of their civil rights under Title VII of the Civil Rights Act of 1964, the Equal Pay Act and the Family Medical Leave Act, for example. In addition, the Equal Employment Opportunity Commission may bring suit on behalf of aggrieved employees of public entities."
Adele added, "Public entities may have limited sovereign immunity defense under state laws, which tend to provide broader protections for employees. Therefore, in addition to seeking the advice of outside employment law counsel versed in EPL and related sovereign immunity issues, public entities faced with mass layoffs or firings should give serious considerations to availability and adequacy of employment practices liability insurance (EPLI) coverage. EPLI provides protection to the public entity, employed officials (including school boards) and its employees for claims alleging discrimination, harassment, wrongful termination, retaliation, unfair discipline, wrongful, defamation, libel, slander and breach of implied contract, among other wrongful acts."
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