Already this year, many of Boards of Education in West Virginia
have been faced with a number of school cancelations and delays as
a result of inclement weather. A common question from school
administrators is: What discretion does a Board of Education have
in issuing alternative work schedules on snow days?
West Virginia Code 18A-5-2 provides that
"any school or schools may be closed by proper authorities on
account of . . . conditions of weather or any other calamitous
cause over which the board has no control. Under any or all of the
above provisions, the time lost by the closing of schools is
counted as days of employment and as meeting a part of the
requirements of the minimum term of one hundred eighty days of
instruction. On such day or days, county boards of education may
provide appropriate alternate work schedules for professional and
service personnel affected by the closing of any school or schools
under any or all of the above provisions. Professional and service
personnel shall receive pay the same as if school were in
session."
Of course when a Board of Education provides alternative work
schedules, it must do so without discrimination and/or favoritism.
West Virginia Code 6C-2-2 defines
discrimination as "any differences in the treatment of
similarly situated employees, unless the differences are related to
the actual job responsibilities of the employees or are agreed to
in writing by the employees". And, favoritism is defined as
"unfair treatment of an employee as demonstrated by
preferential, exceptional or advantageous treatment of a similarly
situated employee unless the treatment is related to the actual job
responsibilities of the employee or is agreed to in writing by the
employee." In sum, a Board of Education should be uniform
among similarly situated employees.
For example, in Denny Sullivan v. Jackson County Bd. of
Educ., Docket No. 96-18-087 (Aug. 30, 1996), the board of
education on a state of emergency day called only maintenance and
custodial employees to work, as they were considered essential to
maintain the premises and remove snow. If any employee in either of
these classifications was unable to report to work they were
required to take some form of leave time. The Grievants, all in the
classifications required to report, initialed a grievance alleging
favoritism and discrimination because other employees did not have
to report to work. However, the Grievance Board ruled that the
Grievants failed to show any violation, and ruled that "a
county board of education may establish 'alternative work
schedules' for employees during a time of
emergency."
Also, it is important to note that "differences in work sites
can justify differences in the treatment of employees assigned to
those sites despite that the employees are in the same
classification." Bryan Rogers v. Jackson County Bd. of
Educ., Docket No. 96-18-104 (Aug. 30, 1996).
Another example is found in Sandra Shetler and Deborah Weatherholtz v.
Berkeley County Bd. of Educ., Docket No. 00-02-119 (June
9, 2000) in which the Board of Education directed all central
office personnel to report to work on a one hour delay on a day in
which school was closed for snow. School based staff was not to
report to work. The Grievants were both Special Education
Coordinators. The Grievance Board ruled that the "Grievants
were not similarly situated to the employees who were not required
to report to work. The other 210-day employees that did not have to
work were school-based employees, were not in Grievants'
classification, and their schools, or places where they worked,
were not open for business." Again, the most important factor
is to similarly situated employees are treated equally, but,
differences in work sites can justify differences in the treatment
of employees assigned to those sites despite that the employees are
in the same classification.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.