5.3. Employee Conduct Laws and Policies

It is a basic principle that every employee, of whatever rank, shall at all times be held responsible for competent and effective performance of his or her duties. Act 58 of the 1969 Louisiana Legislature authorized the use of force (“all means available to the governor”), if necessary to prevent any person, including faculty members, from disrupting educational processes or damaging University property. Act 59 of 1969 Louisiana Legislature further provides for the immediate dismissal of any employee who willfully interferes with or disrupts the normal educational processes or administration of the University. (La. R. S. 17:3101 et seq.)

5.3.2 Antidiscrimination Policy

The University is ethically committed not to discriminate against students, faculty, or staff on the basis of their gender, sexual orientation, race, religion, national origin, age, marital status, disability, or veteran’s status. The complete antidiscrimination policy, including formal and informal complaint procedures, is detailed in the Code of Student Conduct. See also the policy on Affirmative Action/ Equal Employment Opportunity (Section 5.2.1).

5.3.2.1 Disciplinary Measures

a. If the Committee believes that a reasonable cause exists for seeking sanctions against the faculty and/or staff offender, the Chairperson of the Antidiscrimination Committee will forward the recommendations immediately to the President of the University.

b. Should the complainant wish to appeal the decision of the Antidiscrimination Committee, a letter should be written to the President of the University within 10 days of issuance of the Committee’s decision and recommendations.

c. Should the complainant wish to appeal the decision of the President, a letter is written to the President of the Board of Supervisors for the University of Louisiana System within 10 days of issuance of the Committee’s decision and recommendations.

d. Any faculty/staff member who feels aggrieved by the Committee’s decision must follow faculty/staff grievance procedures.

e. Retaliatory action by those named in the grievance is subject to immediate disciplinary action.

5.3.3 Policy Prohibiting Workplace & Sexual Harassment, Discrimination & Retaliation

The 1980 EEOC sexual harassment guidelines along with the University’s reporting and disciplinary procedures for Prohibiting Workplace & Sexual Harassment, Discrimination & Retaliation are available on the Human Resources policies website.

5.3.4 Use of Copyrighted Works

5.3.4.1 “Fair Use” In Copyright

“Fair Use” is an implied right to use copyrighted materials under certain circumstances without permission. For the first time, the 1976 Copyright Act makes provisions for exemptions with a “Fair Use” clause. The “Fair Use” provisions are detailed in the United States Code Title 14 Section 107 and are summarized as follows:

Notwithstanding the provisions of Section 106, the fair use of a copyrighted work, including such use by reproduction in copies of phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including such use is of a commercial nature or is for nonprofit educational purposes: (i.e. How will the material be used? If it is for a commercial venture, it is a violation, but if it is copied for a nonprofit educational purpose, it is “fair use.”)

2. the nature of the copyrighted work; (i.e. What type of work is being copied? Each type of copyrighted material (music, software, etc.) has different criteria for “fair use.”)

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (i.e. How much of the work will be copied? If the copied amount exceeds half of the copyrighted materials, or even 10% in some cases, you may be abusing “fair use.”)

4. the effect of the use upon the potential market for or value of the copyrighted work. (i.e. Will copied material cause the copyright holder to miss out on sales? If so, then “fair use” does not apply.)

Section 107 of Title 14 does not define “Fair Use”, but does give some guidelines as to when the principal of “Fair Use” applies. The courts have decided not to define “Fair Use” because they believe each case must be decided on the facts presented. It is clear certain standards for using the “Fair Use” section have been developed to protect teachers from liability for infringement. The detailed code that specifies the use of “Fair Use” for certain circumstances is available in the library (United States Code Annotated—14 Copyrights). For further information, assistance in interpreting the code or to learn how to acquire a copyright, faculty or staff may call or write the following:

5.3.4.2 Software Copyright Law

Copyright law concerning software copying and usage is described in the Copyright Law of the United States of America, revised to March 1, 1989, contained in Title 17 of the United States Code, Section 117.

Faculty and staff should be aware that there are various types of restrictions on the copying and use of software. Software may be copyrighted as a single copy, site license, or shareware while public domain software has no copyright restrictions. Each is described below:

5.3.4.2.1 Single Copy License

Software may be used on one single machine at a time. Some software is restricted to be used on one specific machine.

5.3.4.2.2 Site License

Software is purchased under an agreement that allows a specific number of copies to be made of the software. The restrictions on the copying of software sold under a site license agreement should be understood before copying.

5.3.4.2.3 Shareware

User–supported software that is copyrighted but the developer encourages individuals to make copies and distribute to others. The developer generally asks for a small donation or registration fee H the user plans to use the software.

5.3.4.2.4 Public Domain

Software that is not subject to any copyright restrictions and may be copied and shared freely.

5.3.5 Information Technology Policy

Nicholls State University maintains certain policies with regard to the use and security of its Information Technology (IT) resources, including computer usage, computer systems, and networks. Nicholls State University IT policies exist to maintain, secure, and ensure legal and appropriate use of the University’s information technology infrastructure. Security and privacy policies work together to provide the campus community with a high quality, trusted, and secure campus computing environment. They also help protect and secure property interests, data, and intellectual property. All users of Nicholls State University’s IT resources and facilities are expected to be familiar with and adhere to the Nicholls State University IT policies, and will be subjected to the consequences of and/or penalties for violating University policies. Nicholls State University’s IT Policies apply to the entire Nicholls community, including faculty, staff, and students.

The full database of Nicholls State University IP policies is available at https://www.nicholls.edu/information-tech/policyandprocedure/

5.3.6 Policy for Serving Alcoholic Beverages on Campus

Events serving alcoholic beverages must be approved by the appropriate University offices and then ordered through the designated food service contractor (Sodexho) at least one week prior to the event. Procedures are detailed in The Policy Regarding Alcohol, Drugs, and Tobacco Products.

5.3.7 Drug–Free Workplace Policy and Related Laws

Nicholls State University is committed to a safe and drug–free campus for employees, students, and visitors. Therefore, the University is opposed to the use and abuse of alcohol and any other drug for any purpose other than legitimate use. Employees must adhere to this workplace policy as well as the Policy Regarding Alcohol, Drugs, and Tobacco Products detailed in the Code of Student Conduct. In conjunction with the National Drug–Free Workplace Act of 1988, all employees are notified that the illegal use, possession, dispensation, distribution, manufacture, or sale of controlled substances is prohibited when on official state business, whether on duty or on call for duty, on or off the work site. Failure to comply with this policy may result in disciplinary action up to and including termination. By law, it is the responsibility of all employees to notify Nicholls State University within five days if they are convicted of violating any criminal drug statute at the workplace, while on official state business or while on call for duty.

Nicholls State University prohibits unlawful manufacture, distribution, possession, and use of any narcotics, barbiturates, amphetamines, marijuana, or any other controlled substance as defined in Schedule I through V of Section 202 of the Controlled Substance Act (21 U.S.C.812), and as further defined by regulation at 21 CFR 1308.11 through 1308.15. The University prohibits the unlawful use or sale of any alcoholic beverages and their possession or consumption in any form on the University campus except in those areas where the president or designee has authorized the serving or sale of legal beverages in accordance with the provisions of the state and local law and ordinances and prescribed University regulations.

Furthermore, the Drug–Free Schools and Communities Act Amendments of 1989, Public Law 101–226, require that, as a condition of receiving funds or any other form of financial assistance under any federal program, an institution of higher education must certify that it has adopted and implemented a program to prevent the unlawful possession, use, or distribution of illicit drugs and alcohol by students and employees.

The 1990 Louisiana Legislature passed a bill which designates all state universities as drug–free school zones. This bill increases the criminal and civil penalties to deter the distribution, manufacture, sales and/or trafficking of illegal substances on or within a geographical perimeter around the University property. The drug–free zone includes all Nicholls property: main campus, athletic complex, John L. Guidry Stadium, farm and intramural fields.

Revocation of certain Federal licenses and benefits, e.g., pilot licenses, public housing tenancy, etc., are vested within the authorities of individual Federal agencies.

Employees may be required to satisfactorily participate in an alcohol/drug abuse assistance program or rehabilitation program. Students, visitors, and employees are expected to adhere to all federal, state, and local laws.

5.3.7.1 Definitions

The 1986 Amendment of the Louisiana Criminal Code re–enacted R.S. 14:91.1, 91.2, and 91.5 to comply with the 23 U.S.C.158 concerning alcoholic beverages. In 1995 the Louisiana Criminal Code was amended as follows (excerpt):

For purposes of R.S. 14:93.10 through 93.14, the following definitions shall apply:

“Purchase” means acquisition by the payment of money or other consideration. Purchase does not include such acquisition for medical purposes either when purchased as over the counter medication or when prescribed or administered by a licensed physician, pharmacist, dentist, nurse, hospital, or medical institution.

“Public possession” means the possession of any alcoholic beverage for any reason, including consumption, on any street or highway or in any pubic place or any place open to the public, including a club which is de facto open to the public. “Public possession” does not include the following:

o The possession or consumption of any alcoholic beverage:

For established religious purpose.

When a person under twenty–one years of age is accompanied by a parent, or legal guardian twenty–one years of age or older.

For medical purposes when purchased as an over the counter medication, or when prescribed or administered by a licensed physician, pharmacist, dentist, nurse, hospital, or medical institution.

In private residences.

o The sale, handling, transport, or service in dispensing of any alcoholic beverage pursuant to lawful ownership of an establishment or to lawful employment of a person under twenty–one years of age by a duly licensed manufacturer, wholesaler, or retailer of beverage alcohol.

“Alcoholic beverage” means beer, distilled spirits, and wine containing one–half of one percent or more of alcohol by volume. Beer includes but is not limited to ale, lager, porter, stout, sake, and other similar fermented beverages brewed or produced from malt wholly or in part or from any substitute therefore. Distilled spirits include alcohol, ethanol, or spirits or wine in any form, including all dilutions and mixtures thereof from whatever process produced.

5.3.7.2 Employee Drug Testing Policy

On August 29, 1997, Governor Mike Foster signed Executive Order MJF 98–38, which created the Drug Testing Task Force for the purpose of recommending procedures for the implementation of four drug testing programs authorized, mandated and/or regulated by R. S. 49: 1015, as amended by Act Number 1194 of the 1997 Regular Session of the Louisiana Legislature, and by Act Numbers 1303 and 1459 of the 1997 Regular Session of the Legislature, which directs state agencies to develop and implement drug testing programs for public employees.

Louisiana Revised Statute 49:1001–1021 authorized Nicholls State University to proceed with drug testing of employees. The content of this policy is pursuant to this Statute and to the Drug–Free Schools and Communities Act of 1986, the Federal Drug–Free Workplace Act of 1988, the Drug–Free Public Housing Act of 1988, the Louisiana Drug Testing Act of 1990, the Omnibus Transportation Employee Drug Testing Act of 1991, the Federal Highway Administration procedures, Title 49 CFR and part 382 et al., LA Revised Statutes 23: 1081 and 1601, and Executive Order MJF 98–38.

5.3.7.2.1 Applicability

This policy shall apply to all employees of Nicholls State University, more specifically defined as:

All current W–2 employees defined under Federal Law, whose job requires them to drive commercial motor vehicles.

All current W–2 safety/sensitive employees, both classified and unclassified as defined under State Law, and those applying for safety/sensitive positions, and all other current W–2 employees, both classified and unclassified, will be subject to alcohol and controlled substance abuse testing on a random basis or for reasonable suspicion, post–accident investigation, and monitoring for rehabilitation.

Prospective employees as a condition of hiring.

Reasonable Suspicion

Post Accident Investigation

Rehabilitation Monitoring

Pre–Employment

Safety/Security sensitive positions and promotions/appointments to these positions

Safety/Security sensitive positions – random testing

5.3.7.2.2 Conditions Requiring Drug Tests

5.3.7.2.3 Procedure

Drug testing, pursuant to this policy, shall be conducted for the presence of cannabinoids (marijuana), cocaine, opiates phencyclidine and amphetamines. Nicholls State University also reserves the right to test for the presence of any other illegal or controlled substance when there is reasonable suspicion to do so. The Director of Human Resources will be involved with all determinations and notifications dealing with drug testing, and will coordinate with the supervisor of the employee to be tested.

A certified provider chosen by Nicholls State University will perform testing services. The testing service shall assure:

All specimen collection will be performed in accordance with applicable federal and state regulations and guidelines.

Chain of custody will be strictly followed.

A certified SAMSHA laboratory shall perform testing.

All positive results shall be reported by the laboratory to a qualified Medical Review Officer (MRO).

5.3.7.2.4 Confidentiality

All information interviews, reports, statements, memoranda, and/or test results received by Nicholls State University through its drug testing program are confidential, pursuant to R.S. 49: 1012, and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in an administrative or disciplinary proceeding or hearing, or civil litigation where drug use by the individual is relevant.

Qualitative information regarding results, such as the identification of a substance, will be provided only to the designated MR07 who will report final results to the appropriate official. Results of the test will be released to the appropriate agency on a need–to–know basis. All drug–testing results will be maintained in a separate health file, with restricted access in accordance with Section 382.405.

5.3.7.2.5 Responsibility

The President for overall compliance

The Director of Human Resources for administering the program. All records will be housed and maintained in the Office of Human Resources

All supervisory personnel are responsible for assuring that all personnel under their supervision are made aware of the location within their department of the written drug–testing policy, signs a receipt form acknowledging receipt of pertinent information about the policy, and understands or is given the opportunity to understand and have questions answered about its contents.

5.3.7.2.6 Violation of the Policy

Violation of this policy, including refusal to submit to drug testing when properly notified to do so may result in: Termination of employment or other action.

5.3.8 Violence–Free Workplace Policy

Recognizing the increasing incidence of violence in the workplace, the Governor of the State of Louisiana issued Executive Order Number MJF 97–15 committing the Governor and the State of Louisiana to work toward a violence free workplace for all state employees. Nicholls State University’s complete policy regarding a violence free workplace is located on the Human Resources policies website.

5.3.9 University Ethics and Compliance Policy

The Nicholls State University Mission, Vision, and Values Statement, contains the language that as community members, “We strive to be fair, ethical and truthful in all instances.” The University expects all employees to comply with all federal, state and local laws, to fulfill contractual obligations, to maintain absolute integrity and a high standard of individual honor in work, and to interact and communicate with others in a respectful and civil manner. In our roles as university employees, it is our shared responsibility to protect Nicholls from unethical or improper actions wherever they may occur. The willingness to exercise individual and collective initiative here is a key factor in minimizing the number of incidences of potentially unethical or illegal conduct occurring within the University. By individually and collectively following this standard of behavior, we will be able to preserve the University’s reputation as reflecting an ethical institutional environment.

It is important to remember that each incident of alleged unethical or illegal conduct harms the university-community and the reputation of Nicholls State University. Confidence in the management of the University is also diminished in each instance of alleged unethical or illegal conduct and criminal prosecution could result.

The University administration must ensure that the controls we have in place for preventing, detecting and reporting alleged violations are understood by all members of the university-community. The key elements to remember in reporting alleged unethical or illegal conduct are:

Report possible fraudulent or improper activities to the University’s Internal Auditor and/or University Police.
After unethical behavior or fraudulent activity has been determined to have occurred, it will be the responsibility of involved senior administrative personnel to monitor the situation through closure.
Fraud is defined as any intentional misrepresentation or concealment, by words or conduct, of material fact intended to deceive another for the purpose of self-enrichment or damage to the University or to any third party.
Nepotism – As stipulated in Board of Supervisors policy, Nicholls State University permits the employment of “persons from the same economic unit or the same immediate family, although a separate economic unit, when the individual qualifications are such that they represent the best possible choice for the position. However, such employees may not be employed in a situation where one member may have direct administrative responsibility from the other.

5.3.9.1 Definitions

o According to the Code of Governmental Ethics for Public Officers and Employees, immediate family as the term relates to a public servant means “his children, brothers, sisters, parents, spouse, and the parents of a spouse.” Relative means any person within the first degree of sanguinity. Dependent means any person so defined in Section 152 of the Internal Revenue Code.

Improper Activities – Acts which violate criminal laws or regulations from any relevant jurisdiction, including accounting, auditing and financial reporting regulations – it must be noted that the University, and/or its employees may be subjected to fines and criminal penalties from such activities.

5.3.9.2 Reporting Policy and Procedure

Each department head or immediate supervisor is responsible for preventing, detecting and reporting fraud and other improper activities. The following reporting procedure is to be used when violations or unethical conduct are either suspected or discovered:

An employee must report any unethical behavior, known to him or to her, to his or her immediate supervisor. If this is not an appropriate contact, the employee should contact the Internal Auditor.

The intimidation or imposition of any form of retribution or retaliation against employees or others who in good faith report unethical behavior will not be tolerated.

The immediate supervisor will report any allegation of fraud or improper activity to the senior administration and to the Internal Auditor and/or University Police.

The affected immediate supervisor, in conjunction with involved senior administrative leadership, will determine what course of action should be undertaken regarding any reported incidents.

A report will be completed by the Internal Auditor and/or University Police for all investigated acts for submission to the University President and, as appropriate, to other state authorities.

5.3.9.3 Disciplinary Action

If an incident is determined to involve fraudulent or improper activities by an employee, appropriate disciplinary action will be taken. The resulting disciplinary action will be based on the seriousness of the violation. The Human Resources Department will be notified and involved in the decision-making process related to any disciplinary actions to be taken by the University.

Changes to Section of Manual

Section	Effective Date	Origin	Change Form
5.3.5	1/1/2019	Dept of Information Technology

Nicholls State University

FACULTY/STAFF POLICY & PROCEDURE MANUAL