Following Due Process

Conversations among the faculty concerning a recent termination have raised great concerns about due process. Can a faculty member accused of poor job performance answer the charges? Is there an appeal process? Do faculty have any place to turn to express grievances? What are the conditions of faculty employment, and are they being respected?

These conversations reiterate the concerns I wrote about in late June ("Secrecy and Morale"): the university must make documents such as the faculty handbook and its grievance policy available to the faculty. Delaying year after year in getting approval on such documents makes it seem that they just do not matter to the administration and trustees. I really don't think that is their view.

This situation concerning a faculty member seems to have ignited a fire to get action on these matters. We need to have a faculty handbook available. We need an approved grievance policy. We need to have access to a personnel policy manual. Even if the documents are in draft form, we need them now. It cannot be good for the university to be lacking easy access to such basic documents.

Mike Broadway

The "At-Will" Principle: Legal, but Not Right

I'm not a lawyer. The following paragraphs are not certified legal opinions. They are my attempt to make sense of court opinions and legal essays on employment law.

The doctrine of "at will" employment appeared historically in the years after the emancipation of slaves in the U.S. It is first asserted in 1877 in a law treatise discussing "master-servant" relations. In an imagined free market in which the master and servant enter into an employment relationship, nothing limits the ability of either, but especially of the employer, to terminate the relationship. This assertion came to be Incorporated into the late nineteenth-century understanding of the rules of employment, unless a written contract specifies otherwise. From the perspective of our time, it is not hard to see the residue of the slavocracy being repackaged at the end of the era of Reconstruction.

Since workers and employers are not by any careful analysis "equals," the result was a growing body of juridical decisions and traditions of employment practice by which the employer became the sole determinant of the conditions of employment for the vast majority of workers. North Carolina is one of thirteen states which does not accept the idea of an "implied contract." However, all states subject the concept of "at will" employment to certain limitations.

The most prominent hindrance to unilateral termination by the employer is a written agreement specifying the term of employment and the permissible causes of termination, a contract. In addition, the arbitrary and unilateral power of an employer also can face limits when an employee handbook describes conditions of employment, limits on causes for termination, and processes for termination and appeal. Such employee handbooks are among the expectations that accrediting agencies expect of institutions of higher learning. For example, the Faculty Senate and Dean's Council recently completed a collaborative effort of revising the Faculty Grievance Process. Not many years ago, the trustees had adopted the policy now being revised as a requirement imposed by the accrediting commission for the Divinity School.

North Carolina and forty-one other states acknowledge that public policy favoring justice and fairness demands that some reasons for termination must be unlawful: an employee may not be punished for refusing to do something unlawful; an employee may not be punished for exercising rights; and a "whistleblowing" employee cannot be punished for speaking up about unlawful conduct. Furthermore, some specific laws, primarily at the federal level, place limits on dismissal: anti-discrimination laws, family and medical leave laws, worker adjustment and retraining laws, and occupational health and safety laws. Finally, a range of case law, common law, and constitutional interpretations may impact the "at will" principle.

In discussions about employment and dismissals, it is common to hear the statement, "North Carolina is an 'at-will' state." So much for stating the obvious. The next step in reasoning is to examine the ways in which North Carolina employment law revises and limits the "at-will" principle.

But there is a far more important consideration for a liberal arts institution founded and grounded on Christian faith. Now I am moving into my specific training as a scholar of theological ethics. Certainly the laws of North Carolina allow employers to have a great deal of unilateral power over employees. But that does not mean that our moral convictions should be lowered to the least common denominator. Everything that is legal is not right. It is no surprise to any of us that people with the power to interpret the laws do not necessarily look out for the interests of others. Just because something is allowed, or possible, does not mean that we should do it.

Built on humane ideals, aspiring for the betterment of those who have been denied access, our institution should aim for a higher standard of treatment of its employees. The legacy of inequality and arbitrary exclusion that required the founding of HBCUs must not be allowed to remain the rule of their operation. The "at-will" principle deserves to go the way of the slavocracy which gave birth to it. Let us take the lead in this over the majority institutions who are our neighbors. We must be a community who treats its members better.

Mike Broadway

Memo: Five Priorities to Improve Faculty Morale

Quoted Document:

FIVE PRIORITIES FOR LIFTING FACULTY MORALE AND PRODUCTIVITY

This document was created by Dr. James Nelson, Jr. after input from twelve senior professors at Shaw

As you know, faculty members currently have no independent mechanism to recommend and effect change. Even our department, school, and general faculty meetings usually function as instruments to disseminate information from the top. The result is that great ideas informally discussed among a few teachers rarely get a chance to be collectively discussed or adopted.

Nevertheless, twelve faculty members in the last few weeks contemplated five priorities needed to improve faculty morale and productivity at Shaw University. Having found that teachers at Shaw often expend much energy either in expressing anger and resentment, or in suppressing those emotions to keep their job, we sought to visualize what outstanding work faculty could accomplish if their presence at Shaw evoked more positive emotions. To begin progress toward such a vision, our group generated the ideas presented below.


1. Restore yearly contracts, multi-year contracts and tenure

➢ Goal: To support long-term commitment in employees.

Our at-will clause states that “both you and Shaw reserve the right to end the employment relationship at any time.” This statement provides no process to address arbitrary decisions, stifles creativity, and ultimately destroys the bond a teacher has in students and the administration. The result is often mutual exploitation, where many feel the administration is using implied intimidation to exercise control and where the faculty may retaliate by legally quitting any time during the school year. Both actions work to the detriment of students. We suggest the bond between faculty and the institution should be one of mutual respect, trust and devotion. Contracts and tenure have been time tested ways that support excellence.

2. Utilize an Evaluation System to enhance faculty salaries

➢ Goal: To reward the services of those who have contributed dearly to Shaw University.

Faculty morale is decimated by the numerous rumors and gossip circulating around campus about new hires, staff, and even secretaries receiving monetary rewards far in excess of existing faculty. In order to ensure commitment, our long term, dedicated teachers need to feel that their services are valued and rewarded. Several suggestions offered by faculty include an annual salary review and publication of a salary scale based on merit which would take faculty rank and years of experience into consideration. Several faculty expressed dismay that the administration has not developed procedures that match their statements of the last few years about salary equity.

3. Institute a maximum twelve semester hour teaching load

➢ Goal: To allow faculty time to pursue other important University goals, such as research, service projects, committee work, and student-oriented initiatives.

A twelve semester hour teaching load is a universal standard that many believe enables a faculty to carry on other necessary enrichment activities valuable to the University. Many faculty members attempt to supplement their low salary by doing overloads. Some faculty reported they taught overloads but never received overload pay. Some deplored the new rules in January restricting or eliminating overload pay after the Fall, 2006 overload work was already done. Others resented that part-time, lesser qualified faculty were sometimes paid more than regular faculty for teaching the same overload courses. We also recommend that the overload pay policy be addressed since the pay is far below that of comparable institutions of higher education.

4. Include the faculty in the employment process

➢ Goal: To allow all faculty members to feel they have a stake in the growth of Shaw University.

Almost all in-house positions on campus are filled by administrators who select their desired person. Most times this is done without informing any other faculty of the vacancy or any apparent public attempt to find the best person. The result is that many faculty members neither feel appreciated nor do they have a stake in the growth of our University. Several faculty members suggested that all faculty be informed of and be able to apply for in-house positions. The faculty also felt that external positions should be advertised not only on Shaw’s web site, but in a national publication, such as the “Chronicle of Higher Education”. Faculty finally felt that each area should have an employment committee that should be consulted before finalizing new employment within their area.

5. Restore the Faculty Senate

➢ Goal: To institute proper respect and consideration for the ideas of faculty.

Our group feels that teachers are given little opportunity to get involved in the decision- making process of the university. Faculty must have input in establishing the agenda of faculty meetings. Faculty felt they must have a place where they can voice their concerns, concerns such as the very unhygienic conditions in the Tupper building, lack of cleanliness in many of our other buildings, lack of effective boards, chalk and erasers, huge potholes on campus damaging their cars, and the low quality of many students on campus. Many felt that it is important that the administration create a sense of involvement of the faculty. Faculty representation is mandated by SACS and will make the faculty feel committed to the growth of the University and thus more willing to serve. In addition to the creation of a Faculty Senate, faculty felt that the Senate should choose representatives to serve on the President’s Cabinet and on the Board of Trustees.

Simple, Non-Threatening, Courageous Acts

This week I received a forwarded email discussing concerns of some faculty at Shaw University. It was an invitation to a conversation. I was not part of meetings from which the document emerged, but I like very much what it had to say and how it said it.

Part of the difficulty university faculty face, whether at Shaw or elsewhere, is the time and opportunity to discuss and act on matters pertinent to their work and the work of the school. When these opportunities are not structured into university life, faculty find themselves relying on the conversations in the hallways, in the parking lots, and at the coffee pots. These fragmented conversations often elicit important ideas, but the bits and pieces of progress lie unresolved or even dormant, while the day-to-day concerns preoccupy our thoughts and energies.

Now and then, these scraps of communal discernment find their way into a document. Some such documents are carefully worded and diplomatic. Yet if there is no energy or structure to keep them moving, the conversation may not go anywhere. Other times, a faculty member may shoot off a hot letter to vent frustration. This often results in a crisis of relationships that forecloses further conversation.

The document "Five Priorities to Improve Faculty Morale" is not the kind of statement that should cut off dialogue. It is composed in reasonable language with appropriate respect for the conversation partners. It does not pretend that all is well, nor does it demonize people by singling them out as the cause of problems. It asks for conversation on important topics, and it expresses a set of priorities clearly. By showing respect and explaining reasons, "Five Priorities" offers to continue a conversation rather than to drop a bomb and see who are the casualties.

It would be pointless to ask for conversation on the pretense that faculty members have not already come to some conclusions of their own about how to improve the university and their place in its work. This document is direct on a number of issues such as at-will employment, contracts and tenure, hiring processes, structures of faculty governance, faculty workload, and compensation. Who would be surprised that these are on the agenda? Acknowledging them is a key step toward addressing them. Thus, by being specific, the "Five Priorities" helps establish the ground for a robust conversation.

Additionally, "Five Priorities" clarifies for the faculty that our role in the university is never as passive recipients of action, nor merely as responders to the work of others. We also are initiators of the work that makes a university what it must be.

All who have studied the history of universities would know that they began as gatherings of students in cities where groups of teachers had congregated. The essence of a university resides in its faculty's capacity to preserve, pass on, and create the knowledge which allows humanity to thrive.

Over the centuries, innovations have led to administrative units which structure that process so that students and public communities can better benefit from the university's work. Therefore the modern university depends on both administration and faculty to assure its effective work. They must work together. Even if they have not been at odds, in isolation they will be hindered from accomplishing all that they can. The "Five Priorities" asks faculty to take initiative to deal with matters which for many seem to have been delayed for too long.

I have been considering launching this blog since late June. The time now seems right. It is not a perfect medium, but I hope it can be useful. Perhaps it will provide a setting where topics of concern and interest to our faculty can be examined and discussed. It may be that some better way to have this conversation will emerge, and rest assured that I have no vested interest in being in charge of the conversation. For now, I look forward to seeing your comments and interactions.

With this commendation, let me encourage you to review the document. Ask a colleague for a copy if you have not seen it. I hope to include it on this site in future postings.