What can ‘excessive’ mean in a contract?

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What can ‘excessive’ mean in a contract?

In our recent teacher contract, wording was included that teachers could be disciplined for ‘excessive’ absences.
We are given 15 sick days per year.
I was one of over 100 teachers who received a letter that will be ‘entered into our personnel file’ because my absences were ‘excessive.’
In my case, I’ve been out 6 days. I was told that others were out far, far more.
No advance notice or warning was given. No ‘trigger number’ was ever provided.
I have never received a letter like this is 25 years of teaching and consistently receive outstanding performance reviews.
I am not a member of the union, so I cannot go that route.
Is the district acting within its rights?
Or does the contract need to be reworded/renegotiated?

Asked on April 8, 2017 under Employment Labor Law, New Hampshire

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Unfortunately, "excessive" is not a quantifiable term; it is subjective. That means it gives the employer extraordinary discretion to determine what is "excessive." That said, context and past precedent matter: if you chose to or had to fight any disciplinary action:
1) You could argue that using days you are permitted or given to use (e.g. in the contract) is not excessive since those days are part of your compensation. If you are disciplined for using days you are allowed to use, they are hurting you for using part of your compensation, or effectively denying it to you, in breach of contract.
2) If in past years there would have been no warning or consequences for the number of days you took, then the precedent in your organization is that such number of days is NOT excessive, and that in claiming they are, they are going against the history and reasonable expectations; i.e. in this context, that number of days is not excessive.


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