SB 445-3_ Filed 04/10/2001, 17:42.
Adopted 4/11/2001


Text Box


    PREVAILED      Roll Call No. _______
    FAILED        Ayes _______
    WITHDRAWN        Noes _______
    RULED OUT OF ORDER


[

HOUSE MOTION ____

]

MR. SPEAKER:

    I move that Engrossed Senate Bill 445 be amended to read as follows:

SOURCE: Page 8, line 31; (01)MO044501.8. -->     Page 8, between lines 31 and 32, begin a new paragraph and insert:
SOURCE: IC 20-17; (01)MO044501.6. -->     "SECTION 6. IC 20-17 IS ADDED TO THE INDIANA CODE AS A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]:
    ARTICLE 17. EMPLOYMENT PROTECTION FOR EDUCATIONAL EMPLOYEES
    Chapter 1. Definitions
    Sec. 1. The definitions in this chapter apply throughout this article.
    Sec. 2. "Board" refers to the Indiana education employment relations board established by IC 20-7.5-1-9.
    Sec. 3. "Classification seniority" means the length of the most recent continuous service in an employee's classification with a single employer.
    Sec. 4. "Employee" refers to a noncertificated employee (as defined in IC 20-7.5-1-2 (g)) of a school corporation.
    Sec. 5. "Employer" means a school employer, as defined in IC 20-7.5-1-2 (c).
    Sec. 6. "Just cause", as the term pertains to the discipline of employees, includes any of the following:
        (1) Falsification of an employment application to obtain employment through subterfuge.
        (2) Knowing violation of a reasonable and uniformly enforced rule of an employer.
        (3) Unsatisfactory attendance, if the employee is unable to show cause for the employee's absences or tardiness.
        (4) Damaging the employer's property through willful negligence.
        (5) Refusing to obey lawful instructions.
        (6) Reporting to work under the influence of alcohol in a state of intoxication or a controlled substance (as set forth in IC 35-48-2 ), consuming alcohol or a controlled substance on the employer's premises or while operating the employer's vehicles, or while driving a commercial motor vehicle committing a disqualifying offense under IC 9-24-6-8.
        (7) Conduct endangering the safety of the employee or any other employees.
        (8) Conduct endangering the safety of students.
        (9) Any breach of a duty in connection with the employee's employment that is reasonably owed the employer by an employee.
        (10) Commission of child molesting (IC 35-42-4-3), child exploitation
(IC 35-42-4-4), vicarious sexual gratification (IC 35-42-4-5), child solicitation (IC 35-42-4-6), child seduction (IC 35-42-4-7), or sexual misconduct with a minor (IC 35-42-4-9).
    Sec. 7. "School corporation" has the meaning set forth in IC 20-7.5-1-2 (a).
    Chapter 2. Classification
    Sec. 1. An employee may not attain classification seniority until completion of a probationary period of thirty (30) days, at which time classification seniority relates back to the employee's date of hire.
    Sec. 2. If a permanent or prolonged reduction within any classification of employees is determined necessary by an employer, classification seniority shall be the determining factor in making the reduction and any subsequent recall from reduction.
    Chapter 3. Representation
    Sec. 1. An employee is entitled to representation by an employee organization or legal counsel, or both, during any proceeding under this article.
    Chapter 4. Discipline and Discharge of Employees
    Sec. 1. An employee may be disciplined before suspension or discharge only for just cause as enumerated in IC 20-17-1-6 (1) through IC 20-17-1-6 (7), IC 20-17-1-6 (9), and must be:
        (1) informed in writing of all details of any offense or violation:
            (A) with which the employee is charged; and
            (B) that would constitute just cause for discipline; and
        (2) given a reasonable time to correct the behavior constituting the identified offense or violation described in

clause (A).
    Sec. 2. A discharge may not take effect unless, at least ten (10) days before the effective date of the discharge, the employer:
        (1) provides the employee with written notice of all offenses or violations for which the employee is being discharged; and
        (2) affords the employee an opportunity to request, in writing, a hearing before an impartial hearing examiner under IC 20-17-5.
    Sec. 3. A request for a hearing under IC 20-17-5 must be made by an employee before the effective date of the discharge. If the employee fails to request the hearing, the employee is considered discharged on the effective date of the employer's written notice.
    Sec. 4. If an employee requests a hearing under IC 20-17-5 , the employer may suspend the employee with pay upon the effective date of discharge, pending the determination of the hearing examiner.
    Sec. 5. The employer may, without notice, suspend with pay an employee pending discharge if:
        (1) the employer reasonably believes the nature of the employee's misconduct warrants immediate suspension; or
        (2) the suspension is for just cause as enumerated in IC 20-17-1-6 (8) and IC  20-17-1-6(10).
In this case, the employer shall afford to the employee, after the suspension, the formal procedures described in section 1(1) of this chapter.
    Chapter 5. Hearings
    Sec. 1. Upon receipt of a written request by an employee subject to discharge as described in IC 20-17-4-2 , the employer shall request the board to appoint a hearing examiner to preside over the hearing.
    Sec. 2. A hearing examiner has the following duties:
        (1) To give the notice provided in section 3 of this chapter.
        (2) To schedule the hearing at a specified date, time, and place, with the authority to postpone the date and time or change the place for any good cause.
        (3) To take full charge of the hearing in accordance with IC 4-21.5-3-25 and IC 4-21.5-3-26 , subject to this chapter.
        (4) To render a written decision in the matter, including findings of fact and conclusions of law, that is binding on all parties as of the date of the decision and that contains a notice of the right to seek review of the decision before the board.
        (5) To file the original of the hearing examiner's findings, conclusions, and decision, along with the record in the case, with the board.
        (6) To cause a copy of the hearing examiner's findings, conclusions, and decision to be served upon each of the parties.


    Sec. 3. The following constitutes the hearing procedures by which an employee may be discharged:
        (1) The hearing examiner, not more than five (5) days after the hearing examiner's appointment, shall send notice to the parties of the date, time, and location set for the hearing.
        (2) The hearing examiner shall conduct the hearing under IC 4-21.5-3-25 and IC 4-21.5-3-26.
    Sec. 4. Any party to the hearing who is aggrieved by the decision of the hearing examiner may appeal the decision to the board as follows:
        (1) Not more than twenty (20) days after the date the hearing examiner files the hearing examiner's findings, conclusions, and decision, the party aggrieved by the decision may file a petition for review of the hearing examiner's findings, conclusions, and decision. The filing and pendency of a petition for review shall operate to stay the effectiveness of the decision unless otherwise ordered by the board.
        (2) The petition for review must be in writing and be filed with the board. At the same time, a copy of the petition for review must also be filed with the opposing party. The petition must specifically set forth the reasons for the objections of the aggrieved party to the decision of the hearing examiner.
        (3) Not more than ten (10) days after the date on which the petition for review is filed with the board, any party to the proceeding before the hearing officer may file a reply to the petition for review on the board with simultaneous service upon the opposing party. The reply must specifically set forth the party's reply to the objections of the aggrieved party to the decision of the hearing examiner.
        (4) Not more than fifteen (15) days after the filing of a reply to the petition for review, if any, the board shall render a final decision consisting of the board's findings of fact, conclusions of law, and final order in the matter.
        (5) A party to the board's final decision may seek judicial review under IC  4-21.5-5.
    Sec. 5. The board is authorized to enforce the board's orders and to take other appropriate action, including reinstating an employee with back pay.
    Chapter 6. Construction

    Sec. 1. This article may not be construed to limit the application of an agreement negotiated between an employer and the recognized representative of employees with a particular employer.
".    
    Renumber all SECTIONS consecutively.
    (Reference is to ESB 445 as printed April 6, 2001.)

________________________________________

Representative Kersey


MO044501/DI 96     2001