Charter School Teachers and Employees: Know Your Workplace Rights! 

 

 

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Introduction to Your Rights: Charter School Employees

The unionization of charter schools jumped 444 percent in the last decade, 2001-10, compared 1992-2000, and is increasing rapidly. The number of unionized schools in each state varies. During the 2009-10 school year, 24 of the 40 states with charter schools had at least one charter school that entered into a bargaining agreement with a union. In Alaska, Hawaii, Iowa, and Maryland, all charter schools were unionized, while 171 charter schools in Wisconsin were unionized, 122 in California, and 42 in Ohio -- 72 percent of the nation's unionized charter schools located within these seven states. See "Unionized Charter Schools: Data from 2009-10."

Unionizing employees is to take the employee's natural rights to deal directly with their employer regarding the employee's terms and conditions of employment, and give it to the union, who then acts as the employees' exclusive bargaining representative.

Most employees, however, prefer a workplace where they are free to discuss their terms and conditions of employment directly with the employer, without a third-party's intervention. See "Union Members – 2011." Eva Moskowitz, former chair of the New York City Council Education Committee and current founder & CEO of Success Academy Charter Schools (currently operating 14 charter schools in Harlem, the Bronx, Brooklyn, and Manhattan, and an additional 6 planned the 2013-14 school year, noted:

The problem with the Soviet Union was not its leaders or its employees; it was the closed, uncompetitive economic system that stifled its innovation. We have the Soviet equivalent in our schools; it's a system that shuns competition and thwarts change. But in America, it's the [union] collective bargaining agreements that are the glue keeping the monopoly together.

"Breakdown," Education Next, 2006.

Even where a union is involved, most employees prefer a workplace where union membership and the payment of union dues is voluntary, because it forces the union hierarchy to be more accountable to rank-and-file workers. It also forces union officials to sell the benefits of union representation and membership to the individual employees, instead of resorting to threats, intimidation, and even firings to gain financial support. See "Public Opinion on Right to Work"; "Voluntary Unionism Serves Workers, Not Bosses."

Charter School Employees' Rights—Public Sector v. Private Sector

When there is a union in the charter school, or trying to get in, the rights of the charter school employees are covered by labor laws and the constitution. Generally, these laws provide similar rights and protections to employees in both the public and private sectors. Public-sector employees are governed by state labor laws and, depending upon specific state law, they can file a charge with a state labor board or file a claim in state court. Private-sector employees are governed by the National Labor Relations Act ("NLRA"), and they may file unfair labor practice charges before the National Labor Relations Board ("NLRB" or "Board").

The law differs somewhat between the public and private sectors. To know which rights a charter school employee is entitled, the employee must first determine if he or she is considered to be in the public sector or private sector.

Steps to Determine if You, a Charter School Employee, are Public Sector or Private Sector

Step 1: Were you hired directly by the charter school or by a management company to work at the charter school?

If you, a charter school employee, are hired and paid by the charter school, then the determination is based on who established and operates the charter school, and proceed to Step 2 of the analysis. If you, a charter school employee, are hired and paid by a management company (i.e. EMO, CMO, etc.) to work at the charter school, you are most likely a private-sector employee, governed by the rights and protections afforded to other private-sector employees under the NLRA, and your analysis ends here.

Step 2: If you were hired directly by the charter school, how was the charter school created, and/or how is it operated?

This part of the analysis originates from the NLRB's decision in Chicago Mathematics & Science Academy Charter School, Inc. (CMSA), 359 N.L.R.B. No. 41 (2012) finding that CMSA, a private, nonprofit corporation, created under Illinois' General Not-For-Profit Corporation Act, was a private employer under the NLRA. The Board's decision was based on unique factors in the Illinois' charter school law and facts specific to CMSA. The NLRB held that because CMSA was not created directly by the state of Illinois, nor had a governing board "administered by individuals responsible to public officials or the general electorate," it was a private employer under the NLRB's jurisdiction.

The NLRB specifically did not apply its CMSA ruling to all charter schools in the United States. Even though the NLRB limited its decision to the specific parties and facts involved, the NLRB will likely classify Illinois charter schools similar to CMSA as private employers. As a result, charter school employees who work at Illinois charter schools with facts similar to CMSA will likely be considered private-sector employees.

If you do not work in an Illinois charter school, the NLRB's decision in CMSA offers guidance for how the Board may classify charter schools in other states, resulting in a classification of your status as an employee of the school.

A general analysis is provided below for charter school employees who are hired directly by the charter school.

Public-Sector Charter School Employees:
A charter school will likely be considered a public employer if:

  • The state directly creates the charter school; 
  • The state or related public/governmental entity initiates, on its own and without a third party's involvement, the charter school's creation;
  • Using a petition or application process to create the charter school, the authorizer or sponsor is a public entity and the applicant is a historically public/governmental entity or official; or
  • The charter school's governing board is composed of and/or selected by primarily individuals who are historically considered to be public officials or selected by the general electorate.

If you, a charter school employee, work at a charter school created or operating under one of the above scenarios, you will likely be considered a public-sector employee.

Private-Sector Charter School Employees:
A charter school will likely be considered a private employer if:

  • Private individuals or entities, such as a non-profit organization or corporation, etc., creates the charter school;
  • Using a petition or application process, private individuals or entities, create the charter school; or
  • The charter school's governing board is composed of and/or selected by primarily private individuals, with little to no involvement by historically considered public officials and/or the general electorate population at large (not just parents of the charter school's students).

If you, a charter school employee, work at a charter school created or operating under one of the above scenarios, you will likely be considered a private-sector employee.

*NOTE: Each state's charter school law differs from Illinois' and factors among the individual charter schools vary. Your classification as a charter school employee depends on the specific facts and law involved with your employment and the charter school at which you work. For questions about the CMSA decision, your rights, and/or whether you are covered by public-sector or private-sector labor laws, please contact a Foundation staff attorney for assistance at (800) 336-3600, by email at legal@nrtw.org, or here.

Michigan Is the 24th Right to Work State

Michigan passed Right to Work ("RTW") laws on December 13, 2012, for both public-sector and private-sector employees, making it the 24th Right to Work state.

Michigan's RTW laws became effective March 28, 2013. These laws do not have immediate effect upon union collective bargaining agreements entered into prior to that date. Individuals subject to pre-existing contracts are not protected by the RTW laws until the contract expires, is renewed or extended. Thus, if on or about March 28, 2013, you were not subject to a union contract that requires membership or payment of union dues as a condition of employment, you are immediately protected by Michigan's RTW laws. However, if you were subject to such a union contract on March 28, 2013, then you will have to wait to enjoy the protections of the RTW laws until that contract expires, is renewed or extended. Once you are protected by the RTW laws, no subsequent contract or demand by either your employer or a union can require you to be a member or pay any dues or fees to the union.

For a more complete explanation of your rights pursuant to Michigan's Right to Work laws, click here if you are a Michigan public-sector employee; and click here if you are a Michigan private-sector employee. For questions concerning the changes above, or Michigan's RTW laws, please contact a Foundation staff attorney at (800) 336-3600, via email or by clicking here, for assistance.

For questions concerning any of the above information, please contact a Foundation staff attorney at (800) 336-3600, via email or by clicking here, for assistance.


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