Every year we get variations of this question from educators concerned that they are being asked to give up these important parts of their day. And while administrators often schedule testing assignments with an all-hands-on-deck approach, we can certainly appreciate the frustrations of individual educators affected by this. Educators in this situation should be familiar with the law, their options, and potential roadblocks when considering how to approach this common issue.

The Texas Education Code requires public school districts to provide a daily 30-minute duty-free lunch to classroom teachers and full-time librarians. As the name indicates, this time is duty free, and the employee may spend it how they wish, including leaving campus. There are several exceptions that allow a district to take away duty-free lunch, but these exceptions are limited to once per week and intended for rare instances such as extreme economic conditions, unforeseeable circumstances, or personnel shortages.

Conference time—technically known as planning and preparation time—is also required by the Texas Education Code. Classroom teachers employed by public school districts are entitled to a minimum of 450 minutes over each two-week period of work. Unlike duty-free lunch, this is considered work time, but it is supposed to allow teachers time to catch up on planning, grading, parent conferences, and any other work-related matters the teacher deems necessary. 

Some districts have opted out of the duty-free lunch and/or planning and preparation requirements through their district of innovation (DOI) plans. In those districts, the unfortunate answer to the question above is “yes” because the legal provisions no longer apply. In districts where the duty-free lunch and planning and preparation laws remain intact, an educator has several options to consider. 

One very common-sense approach would be sharing their concern with their campus administration either verbally or via email. Although this might not immediately resolve the issue, doing so would at least put the administration on notice and potentially pave the way for future changes. When utilizing this informal option, educators may find strength in numbers, but they should be aware of their district’s chain of command policy, which often requires an educator to initially approach their direct supervisor.

A more formal approach would be filing a grievance over the violation. Because there are no exceptions to the planning and preparation requirement and the duty-free lunch exceptions do not generally apply, requiring a teacher to forfeit these during testing very likely violates the Texas Education Code. That being said, a district’s grievance process often moves too slowly to resolve the issue before testing is complete. And, unfortunately, there are no consequences to the district or monetary damages available to educators when forfeitures do occur.  Additionally, the Texas commissioner of education has ruled that he does not have jurisdiction over one-time forfeitures of duty-free lunch, an indication of how he might decide forfeitures during testing. With these potential considerations in mind—and with the increased risk of retaliation for bringing legal action against their administrator—many educators are understandably hesitant to pursue a formal grievance.

As a result, many educators choose to take the least confrontational approach and just accept the temporary removal of duty-free lunch and/or planning and preparation time. While it is certainly not optimal, many find it bolsters goodwill with their administration, who may be more likely to see them as a team player or someone who doesn’t rock the boat.

Please visit our website for more information on common legal questions and the duty-free lunch and planning and preparation laws.

We thank you for all you do as educators and hope this general information is helpful as you navigate potential legal issues with your district. Good luck this spring as you move toward a well-deserved summer break!

 
The legal information provided here is accurate as of the date of publication. It is provided here for informative purposes only. Individual legal situations vary greatly, and readers needing individual legal advice should consult directly with an attorney. Please note: Rights based on the Texas Education Code may not apply to all. Many Texas Education Code provisions do not apply to public charter schools, and public school districts may have opted out of individual provisions through a District of Innovation plan. Eligible ATPE members may contact the ATPE Member Legal Services Department.