November 2017, Vol. 2

Myths: duty days and salary in employment contracts

by Cindy Clegg
Should duty days and salary be written into the employment contract for each employee?
Simple logic could argue that an employment agreement ought to include the expected work period and the salary. But does that mean these two items should be written into the contract? In the public school environment of Texas, where simple logic is not often the correct answer, the response is no.
Myth 1— A specific salary amount must be stated in the contract.
An employment contract documents the terms of the employment relationship and must include the terms of compensation. However, in Texas, the contract renewal calendar and the budget adoption calendar are not in sync, making it impractical to quote a precise salary amount at the time the contract is offered to employees. Contract renewals are often sent to employees in February or March, to give employees plenty of time to sign and return the contract before the school year ends. On the budget side, the board often cannot make final decisions about funding for pay raises until July or August.
The TASB model contracts state that employees will be paid in accordance with the compensation plan to be adopted by the board for the upcoming year. Employees agree to these terms in advance of knowing the particulars. Districts later provide specific salary information by issuing pay notices to employees sometime after budget adoption and before the penalty-free contract resignation deadline (i.e., 45 days before the first day of instruction for the next school year). Even though the subsequent pay notice is not written into the contract itself, it is still legally considered an addendum to and a material term of the contract and it is equally binding. A notice of compensation is available in the HR Library (myTASB login required).
If a district fails to provide notice of a specific salary by this deadline, the district is committed to pay no less than the employee was paid in the prior school year. If a district is planning to reduce pay below the previous year’s level, notice of any reduction must be provided to the employee before the penalty-free resignation deadline. This allows the employee to resign the position without penalty if the terms of compensation are unacceptable.
Myth 2—The number of days an employee is required to work must be specified in the contract.
There is no federal or state law that requires a district to create an employment contract for a fixed number of duty days. State law only requires that teachers be paid a minimum monthly salary for a 10-month contract with a minimum of 187 duty days required. Required days of instruction for students was changed to minutes of instruction by the 84th Texas Legislature, but teacher contract laws were not changed.
To best serve the needs of students and preserve flexibility, TASB recommends the contract only include the number of months employed. Publishing a fixed number of duty days may have the unintended effect of the district forfeiting the ability to alter duty schedules during the contract period and lead to claims of additional pay owed for extra days worked.  
A 2010 legal decision (Kelley v North East ISD) held that a posted duty schedule showing 187 duty days for 10-month employees was, in effect, a material term of the contract. The district was required to pay for an additional day when the employee worked 188 days to attend student graduation, even though graduation day was within the ten months of the contract. As a result, it is recommended that districts refrain from citing duty days in all related employment documents (e.g., duty schedules or salary letters). These documents need only include the months employed, the start and end dates of the contract period, and the total salary to be paid. The school calendars will show which days employees are scheduled to work and which days are school holidays.
For more general information on contracts, see the Contracts and Assignments section of the HR Library