Education Laws and Regulations
Hiring Licensed Educational Personnel: Legal Requirements and Careful Hiring Practices
|To:||Superintendents of Schools, Charter School Leaders, Directors of Approved Day or Residential Schools, Educational Collaboratives and Other Interested Parties|
|From:||Mitchell D. Chester, Ed.D., Commissioner of Elementary and Secondary Education|
|Date:||August 20, 2010|
As you begin the 2010-11 school year, I would like to take this opportunity to remind you of the requirement to hire licensed educators and outline some useful tools that are available to you, the license waiver process, and related issues concerning careful hiring practices.
Legal Requirements: Pursuant to M.G.L. Chapter 71, s. 38G, no person shall be eligible for employment as a teacher or professional support personnel or administrator unless s/he has been granted by the Commissioner an educator license with respect to the type of position for which s/he seeks employment. Similarly, the Regulations for Educator Licensure and Preparation Program Approval, 603 CMR 7.14(9), provide that to be eligible for employment by a school district in any position covered by 603 CMR 7.00, a person must have been granted a license by the Commissioner that is appropriate for the role or be serving under an exemption as provided by law for that role.
Please note that this guidance relates to legal employability as outlined in M.G.L., Chapter 71, s. 38G, and 603 CMR 7.00. It does not cover the federal requirements for Highly Qualified teachers. For hiring and employment guidance in relation to Highly Qualified teacher requirements, please refer to: http://www.doe.mass.edu/educators/title-iia/hq/.
Useful Tools: To help you meet these legal requirements, I would like to remind you of some tools that the Department has available to assist you with matters related to educator licensure.
- ELAR - Superintendents and designated district staff have access to our online licensing system in order to check the licensure status of current staff or potential hires.
- Commissioner's Hotline - You can receive assistance on licensure matters by contacting us at 781-338-3065.
- Drop Boxes - Two licensure related drop boxes are accessible to you after logging into the Department's Security Portal:
- Expedite Drop Box - If you find in the ELAR file that a license applicant's status is "Ready for Review," you may request to expedite the decision on that application through the Expedite Drop Box and the application will be reviewed within two days. Applicants whose status appears as "Pending" or "Not Ready" are not eligible for an expedited review.
- The Licensure Status Drop Box - This useful tool can provide you with the license status of all your district staff. After you submit a file with the necessary information, the complete status file is ready to be retrieved from "Drop Box Central" the next day.
- "Matching Licenses" - In 2007 the Department developed a guidance document known as "Matching Licenses" which can assist you in determining the most appropriate license for the roles assigned to your personnel. This document can be found at: http://www.doe.mass.edu/news/news.aspx?id=3542
Waivers: If your search to hire a qualified and appropriately licensed candidate is not successful, you must apply for a waiver from the Commissioner exempting the school district for one school year from the requirement to employ licensed personnel. Waivers are generally required for individuals whose license is not yet approved, individuals teaching outside of their licensure area for more than 20 percent of their time schedule, and individuals who may have been employed for the validity period of their license (for example, a teacher employed for five years under a Preliminary license who has not yet advanced to the Initial license stage).
To qualify for a waiver, a district must maintain documentation of its efforts to hire an appropriately licensed candidate. Those documents are reviewed by the Department, and should include the following:
- All actions taken, beyond internal postings, to recruit an appropriately licensed person for the position (for example, letters sent to placement officers/agencies, participation in a job fair, and copies of advertisements placed in the media).
- The name and license number of any appropriately licensed educators who applied for the position, an explanation of why they were not deemed qualified to perform the duties, and/or the name and license number of any appropriately licensed candidates who declined the position.
The superintendent or superintendent's designee may obtain a first waiver for an individual online through ELAR. For subsequent waivers, the superintendent must document that the educator employed is making significant progress toward meeting the requirements for licensure in the field in which s/he is employed. The requirements can be found at: http://www.mass.gov/edu/government/departments-and-boards/ese/programs/educator-effectiveness/licensure/districts/how-continuous-progress-is-calculated-for-an-additional.html
While it is the responsibility of the license holder to maintain the license and meet requirements to advance or renew the license, it is the responsibility of the employing school district to ensure that the licensee is legally employable for the role and level of the assignment.
During the time that a waiver is in effect, service of an employee of a school district to whom the waiver applies shall not be counted as service in acquiring professional teacher status or other rights under M.G.L. Chapter 71, s. 41. This is so even if the employee holds a license in another area but requires a waiver in order to teach outside of the licensed content area. Further, individuals who are teaching a core subject area under a waiver cannot be considered Highly Qualified.
Critical Shortage Waivers: In addition to hardship waivers under M.G.L. Chapter 71, s. 38G, state law also provides for "critical shortage waivers" that in certain circumstances permit a school district to employ a retired educator beyond the usual limits. M.G.L. Chapter 32, s. 91 provides generally that a former teacher or administrator who is collecting a retirement allowance from the Massachusetts Teachers' Retirement System, may work for a public employer in Massachusetts only for a maximum of 960 hours in a calendar year. Additionally, the salary that the person receives from this position, when added to his or her retirement allowance, cannot exceed the salary that is being paid for the position from which s/he retired.
Pursuant to M.G.L. Chapter 32, s. 91(e), the earnings limitations on re-employment of retirees in Massachusetts public schools are eased in the event of a "critical shortage" in a position as determined by the Department of Elementary and Secondary Education. Regulation 603 CMR 7.14 (13) allows the Commissioner to deem that a district has a "critical shortage" upon the request of the superintendent and demonstration that the district has made a good-faith effort to hire non-retirees and has been unable to find them. The "critical shortage" application process is similar to that for requesting a hardship waiver.
School districts that are interested in hiring a retired educator to fill a critical shortage position must complete a Request for Waiver form and provide the required supporting documentation showing that a good faith effort was made to hire a non-retired educator. As a reminder, districts need to advertise for the critical shortage position in a manner that reaches a sufficiently wide range of the public (internal postings alone are not acceptable) and provide a list of all applicants' names along with the reason(s) they were not qualified for the position in question. If you have any questions about Critical Shortage Waivers, please contact Donavin Bentley at email@example.com or (781) 338-6624.
For questions regarding pension and salary, please contact the Massachusetts Teachers Retirement System, (MTRS), at (617) 679-MTRS (6877) or visit their website at: http://www.mass.gov/mtrs/.
Careful Hiring Practices: As educators, we are entrusted with the safety and well-being of the students who attend our schools. This underscores the importance of exercising due diligence whenever you hire staff. For example, we recommend that before making an offer of employment, each school district, school, or educational program should:
- Require candidates to complete a job application, including listing all previous employers and signing any required releases.
- Conduct thorough background and reference checks. This includes contacting a candidate's recent employers - particularly the superintendent or a senior level administrator in the school district(s) where the candidate worked previously - to ensure that all relevant information is provided.
- Use a checklist and keep documentation of your reference calls.
- Conduct criminal background (CORI) checks on current and prospective employees, volunteers, school transportation providers and others who may have direct and unmonitored contact with children, as required by M.G.L Chapter 71, s. 38R. For more information, please see our Advisory Opinion on the Massachusetts CORI Law at http://www.doe.mass.edu/lawsregs/advisory/cori.html. Please note that the CORI process relates only to Massachusetts; it does not check databases in other states and jurisdictions. The Department will be updating its Advisory Opinion on the Massachusetts CORI Law in the fall of 2010 to incorporate any changes mandated by the CORI reform law that was enacted in August 2010.
- Always confirm electronically, through ELAR - the Department's online educator licensure service - that candidates for positions requiring an educator license (certification) hold the appropriate license or certificate for the position and that their licenses are active.
Schools and districts should exercise due care in hiring temporary substitute teachers and other personnel who may not hold an educator license, as well as in hiring permanent staff.
Monitoring: To carry out our responsibilities under federal and state law and provide increased service to schools and districts, the Department is expanding its efforts to connect data systems that will enhance our reporting and analysis capabilities. The anticipated linkage of the Educational Personnel Information Management System (EPIMS) and the Educator Licensure and Recruitment (ELAR) system will be a helpful tool, enhancing the ability to connect teaching assignments to credentials. In addition, the Department continues to monitor district compliance with the Highly Qualified Teacher Requirements of the Elementary and Secondary Education Act annually through collection and evaluation of the Teacher Effectiveness and Quality Improvement Plan (TEQIP). We encourage all schools and districts to meet these requirements in a timely manner, to avoid delay in the distribution of federal Title IIA funds and other grant allocations.
Care in hiring is a key factor in protecting students and continuing to improve our schools. For further guidance on the hiring process, I recommend that you and your human resources staff consult with your legal counsel as needed, and please contact Department staff if you have any questions about educator licensure and waivers.
Thank you for your attention to this important matter.