In Part I of the series, Language School Contracts Should Contain, I covered “Cancellation for Conflict of Interest” and “Retention of Records,” two provisions that I believe are necessary for school district contracts, whether in an intergovernmental agreement (IGA), a memorandum of understanding (MOU) or agreement (MOA) or any form of contract with a private company or individual. In this blog, I’ll cover adding nondiscrimination and worker eligibility clauses.
In typical attorney overkill, the nondiscrimination provision often looks something like this: “To the extent applicable, the parties shall comply with all laws and regulations, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, and State Executive Order No. 2009-09 which mandated that all persons, regardless of race, religion, handicap, color, age, sex, political affiliation or national origin shall have equal access to employment opportunities. All parties shall comply with the Rehabilitation Act of 1973, as amended, which prohibits discrimination in the employment or advancement in employment of qualified persons because of physical or mental handicap, with all federal regulations regarding equal employment opportunity, with relevant orders issued by the U.S. Secretary of Labor and with all applicable provisions of the Americans with Disabilities Act (Public Law 101-336, 42 U.S.C. §§ 12101-12213) and all applicable Federal Regulations under the Act, including 28 C.F.R. Parts 35 & 36. Parties shall further comply with these laws in regards to access to treatment of the children being served.”
Since very few of the “average Joes” contracting with a school district (not to mention some lawyers) ever actually read the statutes, rules, regulations and executive orders cited, the nondiscrimination provision could also be more simply summarized along these lines: “The Parties shall comply with all applicable State and Federal employment laws, rules, regulations and Executive Orders and with District policies which require that all persons shall have equal access to employment and education opportunities regardless of race, color, religion, disability, sex (including sexual preference/identity), age, national origin, veteran’s status, genetic code or political affiliation during the term of this Agreement.” However it is phrased, it is important to make sure that contracts include notice that those contracting with the District need to comply with these laws. Besides “because it is the right thing to do” and “because the various laws, rules, regulations and executive orders require it,” another reason for requiring including this paragraph is that whenever the District is required to respond to an allegation of a violation of a protected person’s rights, it is good to be able to point to the fact that not only does the District have policies prohibiting discrimination, it also requires those with whom it contracts to comply with these same policies.
Compliance with federal and state worker eligibility is another requirement of contract with the school district that I recommend be included in all contracting documents. Although school districts and other public agencies have to comply with this policy as well, so it may seem redundant to remind them of the fact in a contract, if it is always included, then when a District contracts with a private entity, it is much easier to remember to include it for them as well. This provision normally reads something like this: “By entering into the Contract, ___________ warrants compliance with A.R.S. § 41-4401, A.R.S § 23-214(A), the Federal Immigration and Nationality Act (FINA), and all other Federal immigration laws and regulations at all times when operating in the State of Arizona. The District may request verification of compliance from any contractor or subcontractor performing work under this Contract. All costs necessary for compliance are the responsibility of ___________.” Some of these provisions go on to warn the contractor of the possibility of remedies ranging from suspension of work, termination of the contract, and debarment for failure to verify the worker’s eligibility status. Since verification of a worker’s eligibility provides the District with a “safe harbor” should any worker’s later be proved to be illegally working, it is important for the District to be able to rely upon the workers provided by the contractor as well.
In the next blog I will discuss a few more provisions that I believe should be included in all school district contracts.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Language School Contracts Should Contain, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.