The Accidental Contract

By:  Sarah L. Ford
Parker Poe Adams & Bernstein LLP
Raleigh, North Carolina

The faculty appointment letter is a time-honored tradition in academia.  Issued to new and returning faculty alike, these letters assure your teaching and researching employees of their place and role in the upcoming school year.  Over the years, though, the appointment letter has crept like kudzu through the Human Resources office of many colleges and universities.  We now see it popping up in the mailboxes of assistant librarians, development officers, and recruiters, as well as professors.

To understand why this is a problem, let’s briefly address why the migration occurred.  One simple explanation is that the appointment letter process thoughtlessly was transferred from faculty to non-faculty hires without regard to the implications.  The more significant explanation is that some administrators conjectured that by putting an end-of-the-school-year “expiration date” on all university employment, they would have more flexibility to discharge weak employees.  The theory was that if you didn’t “reappoint” your university catering manager, for example, you weren’t firing him or her, but simply choosing not to renew an expired contract.  Unfortunately for the institutions who have taken this path, it does not provide the protection they are seeking.  Failure to renew an appointment typically is categorized by the EEOC and other civil rights agencies as an adverse employment action equivalent to a traditional termination.  Conclusion:  The appointment letter isn’t much use as a shield.

Worse, an appointment letter can be used by an employee as a sword if he or she is let go prior to the end of the spring term.  A disgruntled former employee can argue that he or she was appointed for the year and therefore is not subject to discharge on an at-will basis.  In this way, a university can find that it inadvertently has entered dozens and dozens of employment contracts and significantly has limited its own freedom to hire and fire as best serves the needs of the insitution.  If you are on this hamster wheel, there are ways to dismount, but also a risk of confusion and upset when employees do not receive the annual appoinment letter to which they have become accustomed.  Talking to an employment attorney about the best way to transition from an appointment letter culture to an indefinite but at-will employment culture is the first best step to ending a cycle of accidental contracts.

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