Category Personnel/Employment
Title Lack of Performance and Termination of an Employee
Preview Lack of Performance and Termination of an Employee

Lack of Performance and Termination of an Employee
John L. Cooley, Attorney

Q: One of our teachers has been employed for about seven years Over the last two or three years, her performance has declined. We are considering either terminating her after the holidays or not renewing the contract for next year. What things should we consider to avoid possible liability?

A: This is an issue raised frequently by schools throughout the year. In answering the question, several points must be examined:

  1. Since it appears the school has issued a contract to the teacher, the school must examine first the specific language. Assuming the contract requires "cause" for termination, the language must include the lack of performance or similar language as a reason for termination. If the contract does not have this language, the school should not proceed with termination.
  2. The school should consider the specific performance issue. As a general rule, if the employee's performance is not sudden or fairly significant, the school should not terminate the employee if the teacher would be surprised. Thus the school should determine the significance of the lack of performance.
  3. If the school performance is not immediately significant, the school should institute a performance improvement plan, giving the teacher a legitimate opportunity to improve. The plan should detain the failure and give the teacher adequate time to improve. The school should attempt to determine the reason for the failure. The plan should attempt to assist with overcoming the reason. The last thing the school needs is an employee saying she failed because of the school's failure to provide the resources, opportunity, etc.
  4. The school should make appropriate resources available to the teacher.
  5. The school, if challenged, must be able to articulate a legitimate, nondiscriminatory reason for the termination (whether the employee is classified as at will or just cause). If the reason given for termination or nonrenewal of a contract is lack of performance, the school must be able to demonstrate that the reason is legitimate and not due to some other discriminatory reason. The employee must then rebut the reason given by the school. In the case in which there have not been honest evaluations and opportunity to improve, it will be much more difficult for the school to show that its reason was not discriminatory or not in violation of the law.
  6. Even if the school simply does not renew the contract at the end of the year and the contract provides that it is for one year and without a right of renewal, the school should still be able to articulate and demonstrate the lack of performance as well as its discussions with the employee regarding specific lack-of-performance issues.

On the basis of the information above, the direct answer to this question depends on the actions taken by the school. If the school has not addressed the performance issues, it should not move to terminate the teacher until it has done so. It should make sure that the lack of performance is documented and discussed with the teacher even if the decision is to wait to simply not renew the contract. Otherwise, giving that reason without documentation could result in a claim of discrimination on the part of the school. Since each case presents unique facts, the school should consult knowledgeable counsel before terminating or not renewing an employee contract. 

LLU 19.2

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

Association of Christian Schools International
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Colorado Springs, CO 80920
Phone: 719.528.6906


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