public employee discipline and discharge: what hr needs to do to minimize legal risk presented to...
TRANSCRIPT
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PUBLIC EMPLOYEE DISCIPLINE AND DISCHARGE:
What HR Needs to do to Minimize Legal Risk
Presented to PRM Members
by Brian Koji of
Allen, Norton & Blue, P.A.(813) 251-1210
January 22, 2015
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Why is it Important?
Legal costs and the inability to recoup them
Operational costs, morale, public relations, etc.
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Key Concepts
• At Will Employment
• Property Interests in Employment Just Cause/Proper Cause
• Liberty Interests/Name-Clearing
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Key Concepts
• The Right to Work
• Management Rights (Fla. Stat. 447.209)
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Key Concepts
• Progressive Discipline Consistency Progressive Flexibility Punishment fits the crime
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Due Process for Property Interests
• Employer Must Establish CAUSE for disciplinary action
• The Burden is on the Employer
• Triggers Legally-Required, Enforceable Procedural Requirements (pre- and post-disciplinary process)
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Due Process for Property Interests
• Pre-Disciplinary Process: Notice of Reasons that Discipline is Being
Considered (before a decision is made) and evidence upon which Employer Relies
Right to an Informal Meeting with Decision-maker to Respond to Reasons
Is an Employee Entitled to a Representative?
Beware of Potential Additional Requirements for Police Officers and Firefighters
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Due Process for Property Interests
• Post-Disciplinary Process: Full-blown Trial-like Process
Right to Present Witnesses & Evidence, and to Cross-examine Employer Witnesses
Impartial Decision-maker Not Involved in Underlying Decision
Employee Entitled to Representation
Record of Proceeding Must Be Kept and Findings of Fact and Conclusions of Law Issued by Decisionmaker
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Due Process for Liberty Interests (i.e. Name-Clearing Hearing)
• Available If:• Employee is Discharged (or forced to resign)• For a Stigmatizing Reason• The Stigmatizing Reason is made public
• Available even for at will employees (unlike due process hearings premised on property a interest)
• Including stigmatizing information in a public document triggers right to Name-Clearing Hearing
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Due Process for Liberty Interests (i.e. Name-Clearing Hearing)
• Process Due: Employee Given a Public Forum to Refute
Stigmatizing Information (i.e., a public meeting)
Name-Clearing Hearing Does Not Contest the Discipline (it’s just a forum for employee to set the record straight)
No Burden on Employer, no Witnesses or Evidence need be presented, and no Findings of Fact or Conclusions of Law is Required
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Minimizing Risk for Discipline and Discharge
• Use a “third-party perspective”
• The Employer will not be the final decisionmaker
• Use a systematic, step-by-step approach for formal discipline
• Document!!!
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Determine What Applies
Applicable Law Laws governing discrimination,
retaliation, harassment, whistleblower activity, etc.
Employer Charter & Ordinances Employer Policies Collective Bargaining Agreement Employment Contract
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Follow Applicable Procedures
• Due Process if Applicable
• Collective Bargaining Agreement
• Employer Policies
• Prior Practices
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Can You Prove the Basis for Discipline?
• Are Facts Disputed? • Are witnesses credible?• Is Evidence trustworthy?• Have you thoroughly investigated?• DID YOU GET EMPLOYEE’S SIDE?
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Review Annual Evaluations
• Are Annual Evaluations and Job Performance Reviews consistent with discipline?
• Is other documentation consistent?
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Any Problematic or Inconsistent Comments or Documents?
• Discriminatory or inappropriate remarks from decision-maker or anyone involved in decision?
• What does email show? What do notes show?
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Prior Practice
• Review other similarly-situated employees and situations:• Are they consistent?
• If not, can they be distinguished (i.e., not similarly-situated)
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Consider Timing
• Has Employee Engaged in Protected Activity Recently?• Filed workers’ compensation claim?
• Complained of discrimination, harassment, retaliation?
• Engaged in whistleblower activity?
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Consider Alternatives
• Consider alternatives to Discharge (suspension, last chance agreement, etc.)
• Be prepared to explain why discharge was the only option (or, at the very least, the most logical/fair option)
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Notions of Fairness
• Punishment fit the crime?• Employee participate in
investigation and given an opportunity to respond?
• Fair and Adequate procedures afforded (even for at will employees)?
• Does the path followed inevitably lead to the discipline?
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Test Your Supervisors Before Signing Off On Discipline
• Train Supervisors to Involve HR Before Discipline Becomes Necessary
• Make Supervisors Defend the Discipline – Ask the hard questions!
• Involve multiple individuals if possible
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Benefits of Involving Counsel
• Can Rely on Counsel as a Defense (i.e., an outside set of eyes)
• Can discuss all of this information and any other sensitive areas in a privileged conversation
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Thank YouFor questions, comments, criticisms, or suggestions, please give me a call at (813-251-1210) or send me an email at [email protected].