Making Schools and Child Care Settings Safer Through Labor and Employment Law

Background: Efforts to protect children in out-of-home settings, such as daycares and schools, have largely ignored the role of labor and employment laws. However, when child welfare agencies decline to act following an accusation of abuse, it is labor and employment laws that govern whether an employee can be disciplined. 

 Methods: Results were based on a review of more than 100 labor arbitration decisions and court opinions.

Results: Results suggests that employers often fail to define the permissible scope of misconduct in their policies and collective bargaining agreements.  This failure often makes it unlawful to discipline an employee for low-level misconduct that places children at risk.  Additionally, certain traditional labor law principles are ill-suited to the child care and educational context, because they encourage employers to discipline more slowly or leniently than a risk-based approach would suggest.  Likewise, courts tend to place undue emphasis on whether the employer knew about the misconduct, as opposed to whether the employer undertook reasonable preventative measures.

Recommendations: Schools and childcare settings can improve the safety of children in their care by adopting very specific standards on permissible and impermissible conduct towards children and applying those standards consistently.