The “Big Game” has something for everyone; the snacks (nachos), the teams (Chiefs), the halftime show (Beyoncé 2013), and the commercials (Apple 1984). Those clever, and occasionally disastrous, 30-second ads are the result of months of deliberation with the intent to make every $235,000 second count. With a 2023 rate of up to $7 million, every choice made before, after, and during the 30-second spot runs is important. Just like the ad agencies began their process months ago, you too can use your time to ensure that no taxpayer dollars are wasted when negotiating agreements.
Pre-negotiation: Consider any issues that arose during the school year.
If your agreement from last year specified the teacher work day runs from 30 minutes before the school day begins until 30 minutes after school hours end, you might find yourself in a dispute if you need to adjust the start time a few minutes. Why? When you join a negotiated issue (teacher work hours) to non-negotiated issue (school start time) the newly created relationship between the two issues might bring them both under control of the negotiated agreement.
The South Dakota Supreme Court has established a three part test for determining whether a subject is negotiable. The Court explained:
A subject is negotiable only if it intimately and directly affects the work and welfare of public employees; an item is not negotiable if it has been preempted by statute or regulation; and a topic that affects the work and welfare of public employees is negotiable only if it is a matter on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.
West Central Education Association v. West Central School Dist., 2002 SD 163, 655 N.W.2d 916, 921 (citing Rapid City Education Association v. Rapid City Area School District No. 51-4, 376 N.W.2d 562, 564 (SD 1985)). The teachers’ union is not entitled to negotiate subjects like the school calendar because that would substantially interfere with the board’s inherent management prerogative to run the school as it sees fit. You should not negotiate management prerogatives, matters of educational policy, or the board’s statutory duties. Other areas boards should review and possibly revise are FMLA policies (be sure you aren’t giving more FMLA leave that you are obligated to provide) and sick banks (We hate them. A lot. Don’t get us started.)
During Negotiations: Consider having KSB review the proposed agreement.
If you are building a house, you call an architect. If you need stitches, you call a doctor. When you negotiate a legal agreement, you call your attorney. KSB’s attorneys provide comprehensive reviews of negotiated agreements and provide boards and administrators with a report containing areas of concern and recommended revisions including updated legal language. The cost is substantially less than $235,000 per second.
Post-Negotiations: Review your negotiated agreement.
The people who create ads for the world’s most expensive athletic event are already working on the ads for 2024. If you are looking over your agreement and realize that you have problems in that document, like tying early retirement to a specific age cap, there is no time like the present to consider a new version for next year. When an agreement identifies a specific age cap for eligibility for a benefit, it can fall under the protection of the Age Discrimination in Employment Act (ADEA), which prohibits employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. Protect your employees by making the conditions of retirement hinge on years of service instead.
Enjoy the big game, the snacks, the commercials, and Rhianna; then get prepared for your upcoming negotiations–or, if you are too busy watching Monday morning quarterbacking, call KSB to think about it for you by contacting your attorney or dropping us a line at ksb@ksbschoollaw.com.