SOURCE: Page 8, line 31; (01)MO044501.8. -->
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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.)
________________________________________
MO044501/DI 96 2001