As independent schools prepare for a new employment cycle, determining whether to invite employees to return for the 2026-2027 school year, thoughtful attention to employee performance management practices and employment agreements is critical. Increases in aggrieved employees threatening suit and filing claims to challenge personnel decisions underscore that schools must be prepared to explain and demonstrate the basis for their personnel decisions. Well-designed performance processes and carefully drafted employment letters can significantly reduce legal exposure, while also promoting employee engagement and community stability.
The Myth of "At-Will" Employment
The principle of "at-will" employment means that an employee can be terminated, or can resign from their employment, for any reason, or no reason at all, so long as the termination is not based on an illegal reason. Many independent schools maintain that their employees are employees "at will."
However, preserving the at-will nature of employment does not insulate the school from liability. Regardless of whether an employee is "at will" or not, terminations, non-renewals, and other adverse employment actions can still be challenged under federal, state, and local laws, based on claims of discrimination, harassment, retaliation, wage and hour violations, leave-related interference, disability accommodation failures, and breach of contract. When presented with a legal challenge to a personnel decision, schools must be prepared to clearly articulate—and demonstrate with supporting documentation—the legitimate, non-discriminatory reasons underlying employment decisions.
As a practical matter, schools do not make the decision to terminate an employee without reason to do so. Documenting the school's rationale for doing so will best position the school to withstand a legal challenge.
Legal Issues in Performance Management
Inconsistent or informal performance management often creates the greatest litigation risk, as it gives rise to claims based on inconsistent treatment, where employees who share different protected traits are treated differently without a documented, legitimate basis. Schools will want to be able to rely on processes and documentation that demonstrates clear expectations were set for an employee and that it was the employee's own failure to meet those expectations, and not any discriminatory reason, that resulted in termination or other such consequences.
Consistent performance management is similarly central to a school's ability to shield itself from claims of retaliation. Employee retaliation claims can arise where discipline or termination follows an employee's engagement in protected activity, or where the school has failed to comply with applicable employment laws and regulations. "Protected activity" is not limited to an employee's complaint of discrimination but also includes an employee requesting an accommodation or otherwise taking a form of job-protected leave. "Protected activity" can also include employees coming together to improve their working conditions. The ability to demonstrate that performance feedback and improvement processes were communicated to an employee before they engaged in any form of protected activity enables a school to rebut allegations of retaliation.
Shifting the Focus: From Discipline to Engagement
Effective performance management is not simply a disciplinary tool—it is a cornerstone of employee engagement. Schools that emphasize clear expectations, continuous feedback, and honest conversations are better positioned to attract and retain high-performing employees, avoid morale issues, and reduce the disruption that can come with employee terminations or resignations.
Strong performance management begins well before any performance issues arise and should include:
- Clear onboarding and expectation-setting, including job descriptions, policies, and cultural norms
- Goal-setting and ongoing feedback, both informal and formal, to ensure employees understand expectations and performance gaps
- Coaching, focused on clarifying standards, providing resources, and removing obstacles to success
- Counseling, when performance does not meet expectations, with collaboration on improvement strategies
- Progressive discipline, when necessary, clearly outlining unacceptable conduct, prior efforts to support improvement, and consequences of continued deficiencies
- Formal evaluations, conducted consistently and honestly, and based on defined criteria
When addressing performance issues, schools should focus on observable conduct and outcomes. Administrators and supervisors should not make assumptions about an employee's performance based on perceived personal or medical issues. Supervisors should always communicate expectations clearly and follow up conversations with written documentation.
Throughout this process, documentation is essential. Contemporaneous records that are factual, specific, and free from references to protected characteristics will be central to the school's defense. Documentation need not necessarily be formal memoranda but can also include emails and other forms of written communication.
Overall, all documentation should "tell the story" of the school's good-faith efforts to support the employee and provide notice of potential consequences, including separation if improvement does not occur.
Updating Employment Letters and Contracts
Before the upcoming employment cycle, independent schools would be wise to carefully review their employment letters, agreements, and/or contracts. As an initial matter, schools should not be overly concerned with determining whether to refer to their employment documents offer letters or employment contracts, or by some other title; the document's title alone does not determine its legal effect. Rather, it is the terms of the employment document that will govern its legal effect and the obligations between independent schools and their faculty and staff. Schools should ensure that their documents appropriately address the following issues:
- At-will status versus termination for cause
- Notice requirements and term length
- Compensation, benefits, stipends, and working hours
- Exempt versus non-exempt classification
- Duties, including "additional duties as assigned"
- Compliance with policies and professional conduct expectations
- Conflicts of interest and outside employment
- Confidentiality and intellectual property protections, including issues raised by AI
- Background check requirements and ongoing consent
Aligning employment letters with your school's actual practices and performance management processes reduces the risk of breach-of-contract claims and inconsistent treatment arguments.
As independent schools plan for the upcoming employment cycle, investing time in these foundational practices can significantly mitigate risk while strengthening community culture and accountability.
Independent schools with questions about reviewing performance management practices and employment agreements should contact the Venable Independent School Law Practice Group or contact the authors.