March 2014 NYCOM Presentation On Employee Discipline

Employee Discipline
Process, Procedure & Off-Duty Misconduct

NYCOMPersonnelSchool2014 March14,2014
Edward A. Trevvett, Esq. etrevvett@harrisbeach.com 99 Garnsey Road Pittsford, New York 14534 (585) 419-8643 www.harrisbeach.com
Why is Employee Discipline Even Necessary?
Public employers may seek to discipline employee for one of two reasons:
Employee
has committed some type of misconduct; Employee has demonstrated incompetence in the performance of his or her job duties.
Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014
Restrictions on Public Employee Discipline
The same reasons which are generally acceptable for disciplining employees in private-sector employment may serve as the basis for discipline in public-sector employment. However, public employers are generally held to a different standard than private employersthey are bound by specific statutory and case law relating to the requirements of a public employer to effect discharge or other disciplinary policies.
What Governs Disciplinary Proceedings?
Disciplinary proceedings involving public employees are governed by: New York Civil Service Law; and/or Negotiated agreements. Each statute and/or agreement provides for, or relates to, the procedures an employer must follow in various stages of a disciplinary proceeding.
Who is Entitled to Due Process Protections?
Right to due process protection depends on whether the employee has acquired a liberty or property interest in his or her employment. Employee must have a legitimate claim of entitlement to, as compared with a mere expectation of, that interest in his or her position. Courts look to Section 75 of the Civil Service Law and other various statutes to determine whether a
public employee has a property interest in his or her position.

Once Legitimate Claim of Entitlement to Continued EmploymentDue Process Safeguards Come Into Play
Employees protected by Section 75 may be disciplined only upon a finding of incompetency or misconduct shown after a hearing upon stated charges. In effect, this affords employees within its scope a property interest in their public employment position, and thus, its due process safeguards come into play. However, Section 75 protections shall not modify or replace any written collective agreement between a public employer and employee organization . . . .
Due Process Rights of Section 75 Dependent on Appointment Status and Jurisdictional Classification
Section 75 expressly protects:

Permanent
employees in competitive class of civil
service; Exempt volunteer firefighters; Veterans honorably discharged or released under honorable circumstances holding positions by permanent appointment or employment in classified services, except private secretaries, cashiers, deputies;
Permanent
employees in non-competitive class who completed at least 5 years of continuous service in that class (except for confidential or policy influencing positions); Employees holding certain Homemaker or Home Aide positions in New York City; and Certain police detectives.
Section 75s protections only apply to persons who hold a public service position by permanent employmentthey do not apply to temporary or provisional employees. No distinction is made between full-time employees and employees who are part-time or paid on an hourly or per diem basisSection 75s protections apply to each.
Probation
Probationer has limited Section 75 protection must pass probationary term prior to attaining full tenure and property interest in right to public position:
During
minimum period of probation, employee is entitled to full protections of Section 75. After minimum period of probation but prior to end of probation, employee has only limited protection may be removed from position without notice and a hearing, but must be timely notified that probationary status will continue beyond minimum period.
Just Cause Standard
Just cause is a term generally used in employment contracts and union contracts to determine when an employer is justified in disciplining or discharging an employee.
Just Cause Standard
The standard serves as a useful guidepost:

Against
which to review disciplinary decisions; and To protect against employer liability associated with employee discipline.
Employers should approach every disciplinary situation assuming each action would have to be justified under a just cause standard.
Just Cause Standard
The seven-factor just cause test focuses on whether the employer:
Has done a proper job of investigating the matter; and Has adequate proof that the employee was guilty of the misconduct charged.
A no to any one of the seven questions normally signifies that just cause for the disciplinary action did not exist.
Seven Tests of Just Cause
Does the employee have notice of the possible or probable disciplinary consequences of his or her conduct? Is the rule reasonably related to:
The
orderly, efficient, and safe operation of the business; and The performance that the employer might properly expect of the employee?
Has a detailed investigation been conducted? Did the employer make a fair and objective effort to discover whether the employee actually violated the rule? Did the investigation lead to proof of employee misconduct?
Has the employer applied its rules, orders, and penalties even-handedly and without discrimination to all employees? Is the degree of discipline reasonably related to:
The
seriousness of the offense; and The employees employment record?
Good Practice in Any Public Employment Context
The procedures followed and steps taken before charges are served are the key to any formal disciplinary proceeding. The principles of due processemployee notice and an opportunity for the employee to be heardshould apply throughout the disciplinary process, including in the preliminary stages of the employment relationship.
Sound Personnel Practices
An employer in any disciplinary proceeding must clearly show:

What rule the employee violated; What performance standard was not met or what duty was breached; and That the employee knew of, and understood, the rule, standard and/or duty.
Sound Personnel Practices
With this burden in mind, there are many steps a public employer can, and should, take long before any question of discipline arises to both:
Reduce
the chances of misconduct or incompetence; and Facilitate successful resolution of such problems, if and when they occur.
Importance of Documentation
Documentation is critical at every step of the process, whether discipline is imposed, restricted to a verbal warning, or not imposed at all. Detailed and proper documentation can help an employer defend against employment claims; conversely, lack of documentation can lead to legal liability; conversely,
Employer should not wait until initiating disciplinary process against employee to begin documenting. Creating a record of a course of discipline as early as possible makes it much harder for an employee to point to a later instance of discipline as, for example, retaliatory.
Basic documents any employer should maintain:

Documents
showing that each employee has adequate notice of conduct and expectations (notice documents); Records of incompetency/misconduct and conferences/counseling; Written performance appraisals (with employee acknowledgement receipt); Records of progressive discipline policy/actions; Disciplinary investigation documents.
Notice Documents
A well-supported disciplinary policy begins with providing notice to the employee and documenting employees receipt of that notice. Notice documents (e.g., employee handbooks) provide the employee with:
Standards
of conduct; and Expectations of performance.
Notice Documents
Employer should document the following:

That
notice was received by the employee; That the employee was advised to read, understand, and abide by the policies with which he or she was provided; and That the employee has been given an opportunity to ask questions about the standards and expectations and/or that he or she understands who is the point of contact for any such questions.
Notice Documents
Notice documents should be reissued any time there is a rule change or when the employee would confront a new standard of conduct or expectation of performance for any reason.
Records of Incompetency/Misconduct
It is important to keep records of any incident in which a supervisor believes that an employee has shown incompetency or has been guilty of misconduct, since these charges must be proven by employer at requisite disciplinary hearing. An employer should instruct and train supervisory personnel to take a proactive approach in creating and maintaining appropriate records regarding any incident which may lead to disciplinary action.
Records of Conferences/Counseling
Advisable (though not legally required) for supervisor to communicate to, and discuss with, employee any incident as it occursthis gives the employee adequate notice and an opportunity to explain.
Formal
conference or counseling session is not itself a form of discipline. However, it must be documented not as a written reprimand, but as a nondisciplinary counseling memorandum.
Performance Appraisals
Several benefits of correctly implemented performance appraisal process: Allows for:

Review and assessment of employee performance; Setting of goals and identification of problems; Discussion of potential career advancement; and Provision of useful documentation for future progressive discipline.
Important to be honest, accurate, detailed, and consistent.
Progressive Disciplinary Policy
A progressive disciplinary policy is useful because it:
Gives the employee notice of when his or her performance violated applicable standards, with coinciding lowest level of consequences; Addresses (and provides record of) repeated employee problems early on (prevents last minute overcompensation by employer); and Builds link between employee performance and discipline to undermine idea that discipline is connected to some other event.
Typical Progressive Disciplinary Policy
Progressive disciplinary policies typically proceed in ascending order of severity:
Verbal counseling (typically not considered adverse); Written counseling memoranda (and where incompetency is the underlying issue, may be accompanied by performance improvement plan) (typically not adverse); Suspension (with or without pay); Last-change agreement; and Termination
Investigation Following Triggering Event/Prior to Any Disciplinary or Termination Decision
In order to successfully establish incompetency or misconduct, an employer must clearly show:

What
rule was violated; what performance standard was not met; or what duty was breached; and That the employee was aware of, and understood, the rule, standard and/or duty.
So, in addition to sound personnel practices, an accurate and comprehensive investigation is essential in determining whether and what disciplinary action warranted.
Conducting the InvestigationPurpose
The purpose of the investigation is to:

Clearly
identify the issues; Interview witnesses (and subject employee); and Ultimately arrive at the appropriate decision as to what action should be taken at the conclusion of the investigation.
The investigation should be accurate, comprehensive, and properly documented.
Determining the Scope of the Investigation
Certain factors suggest the need for a full and formal investigation (while sometimes issues can be resolved quickly and informally):
What the employer policy says; Complexity/egregiousness of the allegations; Number of parties; Source of complaint; Specificity of information received; and Allegations of systemic conduct (e.g., widespread harassment).
Preparing for a Full & Formal Investigation
Promptly taking action to prepare for an investigation is critical. In so preparing, an employer should take care to:
Review
and follow policy and procedure; Determine the issues to be investigated; Determine what information is relevant and preserve it; and If necessary, take appropriate steps to safeguard the workplace.
Selecting the Investigator
The investigation should only be conducted by an individual who can be fair, accurate, and impartial. No individual who will ultimately decide whether the charges have been proven or whether a penalty is appropriate should be involved in the investigation. An attorney can be helpful in advising as to the process, evaluation of evidence, and determination of appropriate resolution.
Interviewing Subject Employee
The appointing authority has the right to question the employee concerning his or her performance or potential discharge, and the employee is obligated to respond to the inquiryrefusal to do so can be basis for a disciplinary action. However, an employee may have a right to be represented during the questioningthis determination must be made before questioning begins.
Offenses Subject to Disciplinary Action
There is no comprehensive list of acts and/or omissions which constitutes incompetency or misconduct. Good judgment, common sense, and a review of employers rules and performance standards can likely provide a sound basis for a disciplinary action.
Off-Duty Misconduct
An employee has the obligation to honor the standards of behavior which an employer has the right to expect of him, even during off-duty hours. (Pollett v. McGourty, 111 AD2d 1023 (3d Dept 1985)). However, the employer must show some rational relationship between the conduct sought to be sanctioned and the employees job position.
Off-Duty Misconduct
Much of this determination will depend on the position involved and the employers need to maintain the integrity and trust of the person holding that position.
For example, an act committed off the employers premises and not connected in any way with the duties of a public employees job may nevertheless be cause for disciplinary action if it reflects negatively upon the moral character or fitness of the employee. However, off-duty conduct that has no bearing on an employees job duties and responsibilities may not be a proper cause for discipline.
Off-Duty Misconduct
A case example:
Correction officer engaged in the following off-duty conduct:
Fraudulently using license number issued to home improvement company with which he was not affiliated and holding it out as his own; Executing a contract with a homeowner for renovations using that license number; Accepting $35,000 from a homeowner for work that he failed to complete.
Off-Duty Misconduct
Judge explained, because [c]orrection officers are peace officers sworn to uphold the law:
Ignoring licensing requirements bears a nexus to [his] job; Fraudulent conduct bears a sufficient nexus to his job as a correction officer, charged with overseeing criminal offenders in the jail system; Ignoring permit requirements demonstrated flagrant disregard for laws . . . at odds with duties as correction officer; and Failure to perform on contract was unbecoming conduct that discredited [his employer].
Off-Duty Misconduct
First Amendment Issues?
Although a public employee does not relinquish all First Amendment rights by reason of public employment, a public employer may impose certain restraints on off-duty speech of its employees which would be unconstitutional if applied to the general public. Off-duty public employees do have a right to speak on matters of public concern (e.g., matters concerning government policies that are of interest to the public at large and are a subject on which public employee is uniquely qualified to comment).
Off-Duty Misconduct
However, public employee can be disciplined for offduty speech where the employer has a justification far stronger than mere speculation for doing so.
For example the Supreme Court upheld the termination of a police officer for selling tapes of himself online, dressed in a generic police officer uniform, engaging in sexually explicit acts. Rejecting the employees First Amendment argument, the Court explained that because the expression was widely broadcast, linked to the employees official status as a police officer, and designed to exploit his employers mission, it was detrimental to the mission and functions of his employer.
Due Process & The Procedural Requirements for Public Employers
The procedures followed and the steps taken before charges are served lay the foundation for the formal disciplinary proceeding. Therefore, a public employer must always demonstrate that due process has been afforded before taking final action to discipline or discharge an employee, even when egregious misconduct has occurred.
ProcedureTiming Requirements
Generally, a disciplinary proceeding shall not be commenced against an employee more than 18 months after the occurrence of the alleged incompetency or misconduct complained of.
Except:
In the case of a managerial or confidential employee, the proceeding shall be commenced no later than one year after the occurrence of the alleged incompetency or misconduct complained of. Where the employees actions, if proven, would constitute a crime, the proceeding may be commenced at any time.
ProcedurePreparation of Charges
Section 75 provides certain basic rights to an employee against whom disciplinary action is proposed, which include:
A right to written notice of the charges and the reasons for it; A copy of the charges; and A minimum of 8 days within which to file a written response.
The principle purpose of the charges is to apprise the employee of the specific offenses of which he or she is accused and that which the employer intends to prove at the disciplinary hearing. No particular documentary form, but each act or omission constituting the charges must be sufficiently identified and particularized with reasonable specificity.
If the specifications are vague, the employee may ask for, and be given, a bill of particulars. Instances of incompetency or misconduct not covered in the charges, even if proven at the hearing, may not form the basis for a determination of guilt.
In addition to listing the charges/specifications, the form should also provide the employee with the following information:
Employees right to submit a written answer within a specified time (8 day minimum is statutorily required); Date, time, place, and expected length of the hearing; Employees right to counsel or bargaining agent representative; Possible penalties; and Notice of suspension, if applicable.
ProcedureSuspension
An employee who has been served with charges may be suspended, without pay, for a period not to exceed 30 calendar days pending the hearing and determination of charges, unless a negotiated agreement or existing statute provides for a longer suspension.
ProcedureSuspension
Suspension pending the hearing and determination of charges is procedural and does not constitute a denial of due process. However, certain federal courts have required a pre-suspension due process hearing.
ProcedurePrehearing Interrogation
An employee who is the potential subject of disciplinary action must be provided with advance written notice of the right to representation by his or her certified or recognized employee organization during employer questioning (not by his or her attorney).
ProcedurePrehearing Interrogation
An employer may not proceed with prehearing questioning without giving the employee a reasonable period of time to acquire representation, if requested. If the employee is unable to obtain representation within a reasonable period of time, the employer has the right to then question the employee.
Should
a hearing officer determine a reasonable period of time was not given, anything obtained from the questioning must be excluded.
ProcedureDesignation of Hearing Officer
The employee is entitled to a hearing conducted by the body or officer having the power to remove the employee, or by a designee of that officer or body.
Village
and city mayors have the power to remove village and city employees, respectively, or to delegate that power, subject to Section 75s procedural protections.
If the appointing officer or authority is not going to conduct the hearing, a hearing officer must be officially designated, in writing, to perform that function.
The
failure to have proper written designation is a jurisdictional defect, fatal to the proceeding and cannot be cured.
The hearing officer need not be a deputy or subordinate employee of the department or agency of the subject employeerather, the officer may be someone not connected with the agency. However, in either case, the hearing officer must be unbiased and not be someone who has acquired knowledge of the facts relating to the charge prior to the hearing.
Where hearing officer is appointed, the removing officer or body must review the record made before the hearing officer and the hearing officers recommendation in arriving at a decision. The removing officer or body must not be involved in the disciplinary process itself.
ProcedureHearing
A hearing is mandatory and must be held unless expressly waived by the employee, in writing, and filed with the record of the proceeding. It is advisable that an employer be represented at the hearing by an attorney (even though the hearing is less formal than a court of law), because the hearing is adversarial, with the burden of proving incompetency or misconduct on the employer.
The Determination
The final determination must be made by the appointing officer or authority and should not be delegated unless the appointing officer is disqualified due to personal involvement in the matter.
The
determination must be an informed decision based on an independent appraisal of the case. There may be a finding of guilt with respect to a charge only if there is substantial evidence in the record to support such a finding.
The DeterminationPenalties
Upon a finding of guilt on one or more specifications, the penalty or punishment may consist of one of the following:
A reprimand; A maximum fine of $100 to be deducted from employees salary or wages; Suspension without pay for 2 month maximum; Demotion; or Dismissal.
Any time during which the employee was suspended may be considered as part of the penalty.
The DeterminationPenalties
The penalty must depend on the gravity of the offensealthough not legally required, most hearing officers and appointing authorities follow the doctrine of progressive discipline when dealing with charges less serious than those warranting immediate dismissal. The penalty may also reflect due consideration for the employees employment record, as long as employee is on notice of that consideration and given a chance to respond before penalty is set.
The DeterminationAcquittal
If acquitted, the employee must be restored to his or her position, with full back pay for period of suspension (if applicable), less unemployment benefits received.
Notice of Determination
There is no requisite form for the determination to be given to the employee. However, the following guidelines are informative:
Not guilty on all specificationsNotice should so state, should notify the employee (if suspended) to report back to work, and should indicate that back salary will be paid. Guilty on one or more specificationsNotice should indicate the particular specifications for which employee was found guilty, as well as penalties imposed (including effective dates, when appropriate).
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Employee Discipline

Process, Procedure & Off-Duty Misconduct

Why is Employee Discipline Even Necessary?

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Restrictions on Public Employee Discipline

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

What Governs Disciplinary Proceedings?

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Who is Entitled to Due Process Protections?

public employee has a property interest in his or her position.

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Section 75 expressly protects:

employees in competitive class of civil

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Just Cause Standard

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Just Cause Standard

The standard serves as a useful guidepost:

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Just Cause Standard

The seven-factor just cause test focuses on whether the employer:

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Seven Tests of Just Cause

Seven Tests of Just Cause

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Seven Tests of Just Cause

seriousness of the offense; and The employees employment record?

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Good Practice in Any Public Employment Context

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Sound Personnel Practices

An employer in any disciplinary proceeding must clearly show:

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Sound Personnel Practices

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Basic documents any employer should maintain:

of conduct; and Expectations of performance.

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Employer should document the following:

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Several benefits of correctly implemented performance appraisal process: Allows for:

Important to be honest, accurate, detailed, and consistent.

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Progressive Disciplinary Policy

A progressive disciplinary policy is useful because it:

Typical Progressive Disciplinary Policy

Progressive disciplinary policies typically proceed in ascending order of severity:

Investigation Following Triggering Event/Prior to Any Disciplinary or Termination Decision

In order to successfully establish incompetency or misconduct, an employer must clearly show:

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Conducting the InvestigationPurpose

The purpose of the investigation is to:

The investigation should be accurate, comprehensive, and properly documented.

Edward A. Trevvett (585) 419-8643 Harris Beach PLLC, 2014

Determining the Scope of the Investigation

Preparing for a Full & Formal Investigation

Selecting the Investigator