T H. Disciplining Employees: Avoid the Procedural Pitfalls

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1 Disciplining Employees: Avoid the Procedural Pitfalls Janet May, Sound Employment Solutions LLC T H ave you ever said to yourself Why should I bother to discipline this employee it ll just get overturned anyway? The disillusionment grows when you read about highly-publicized cases in which arbitrators returned employees to work even when they engaged in particularly egregious misconduct. While some frustration is understandable, abdicating the responsibility to discipline employees can have a negative effect on your organization s ability to meet its primary mission. It also sends the wrong message to the majority of your employees who are doing their jobs well. Don t be afraid to take disciplinary action when warranted. Despite the recent publicity, employers continue to prevail in many discipline arbitrations, particularly when the context is violence in the workplace or harassment. When employers lose, the problem usually isn t because the discipline wasn t warranted it s because some significant procedural mistake was made early in the discipline process. When procedural mistakes are made, the best attorney in the world cannot remedy the situation and the best arbitrator cannot avoid finding in favor of the em- ployee. Therefore, it is important to make sure the discipline process is done correctly. Avoid missteps along the way. Unfortunately, the discipline process is full of procedural pitfalls and a misstep along the way can unravel even the strongest case. This newsletter offers pointers to help you do discipline right. Share it with all your supervisors a quick review of these checklists before discipline is actually administered may help ensure that the discipline is eventually upheld. INSIDE Discipline 101 Doing It Right: Page 2 This overview provides guidelines for successful discipline to help you avoid some of the most common pitfalls you can encounter during the discipline process. Following the overview, look for an expanded discussion of each of the four most important procedural rights available to employees: Weingarten Rights Page 4 Loudermill Rights Page 6 Garrity Rights Page 7 Police Officers' Bills of Rights Page 8 1

2 Discipline 101 Doing it Right Conduct a Full, Fair and Impartial Investigation One of the first places that mistakes are made is during the investigation itself. If an arbitrator is not convinced that you have conducted a full, fair and impartial investigation, your disciplinary decision may not be upheld. Here are some suggestions for conducting proper investigations: Obtain and review all relevant documentation. Interview the accused to obtain his/her side of the story. Afford union representation when required (Weingarten rights). Retain neutrality and avoid prejudging the situation. Obtain substantial evidence or proof that the employee engaged in the misconduct. Don t drag the investigation out make sure you meet any timelines specified in your contracts or policies. Hold a Loudermill Meeting Before employers take disciplinary action involving a loss in pay, they generally must give regular employees the opportunity to provide information about why the proposed discipline should not occur. This opportunity is commonly referred to as a Loudermill meeting. An arbitrator will require that the Loudermill meeting provide the employee with a true opportunity to be heard not just a pro forma exercise. Use these guidelines to ensure you meet your Loudermill requirements, while avoiding practices that can weaken the integrity of the disciplinary process. Notify the employee well in advance of the date and time of the meeting so they may have sufficient time to have a representative present. The notice should include the reasons the proposed disciplinary action is being recommended. Make sure that the decision-maker reviews the case prior to the Loudermill meeting and is very familiar with the relevant facts. Exclude witnesses unless their presence is required by contract. Clarify information that you don t understand (but avoid having any clarification appear to be a cross-examination of the employee). Follow up on new information that is relevant to the final decision. If a union representative is present, listen to the union s perspective regarding the discipline, but avoid engaging in bargaining with the union over the proper discipline to be imposed. Follow the Rules When Issuing Discipline Public employers with represented employees must follow the terms of the collective bar- gaining agreement and civil service rules (if applicable) when imposing discipline. The agreement and the rules usually provide specific steps that employers must follow, and likely require some type of just cause. If you follow these principles, you will be more likely to convince a reviewer that the discipline was properly issued. Ensure that the decision-maker is clear about the reasons for the disciplinary decision. Clearly delineate the reasons for the decision in the discipline letter. Ensure the discipline is consistent with other previous discipline for similar misconduct, unless there is a legitimate, nondiscriminatory reason for the inconsistency. Follow the procedures for issuing discipline found in your collective bargaining agreements or civil service rules (if applicable). Consider the employee s prior disciplinary history in a progressive manner when determining the level of discipline to be imposed. Make sure the just cause standard is met. (See box on following page.) 2

3 Document, Document, Document One of the keys to having your discipline upheld is good documentation. Arbitrators will ex- pect you to produce evidence of any prior disciplinary actions, dates and times of meetings with the employee, notices, and interview statements. Keep in mind that your documentation may be requested as part of a public disclosure or discovery request. Therefore, every document you create should be treated as a potential exhibit. Here are some things to keep in mind when documenting incidents of misconduct: Limit your statements to the facts. Avoid including your personal opinions. Record any admissions made by the accused employee or other relevant witnesses. Record your observations regarding the witness s demeanor, but avoid speculating on the reasons for that demeanor. Don t make excuses for the employee. If you make excuses for the employee in your documentation, the arbitrator is likely to accept those excuses. Let the employee provide his or her own excuses. Do not use any inflammatory or racially charged terminology. Read for grammar. You may be asked to read what you wrote out loud to the arbitrator, and you want to look intelligent. Just Cause A Brief Overview Although arbitrators are free to formulate their own definition of just cause, most rely on some form of the seven steps of just cause. Since this is the standard by which disciplinary cases are judged, keep these questions in mind when proceeding with discipline. A no answer to any one of the questions may not in and of itself result in the discipline being overturned. However, the greater the number of negative responses, the greater the likelihood that the discipline will not be upheld. The questions are: Did the employer put the employee on notice of the possible or likely disciplinary consequences of the employee s conduct? Was the employer s rule or expectation reasonably related to (a) the orderly, efficient, and safe operation of the employer s business; and (b) the performance that the employer might properly expect of the employee? Did the employer, prior to imposing the discipline, make an effort to discover whether the employee did in fact violate or disobey the rule or expectation and did the employer follow all representation rights? Was the employer s investigation conducted fairly and objectively? During the investigation, did the employer obtain substantial evidence or proof that the employee engaged in the misconduct in question? Has the employer applied its rules, expectations, and penalties evenhandedly and without discrimination to all employees? Was the degree of discipline administered in a particular case reasonably related to: (a) the seriousness of the employee s proven offense, and (b) the record of the employee in their service with the employer? Enterprise Wire Co., 46 LA 359 (1966) AWC To Offer Regional Discipline Training During May and June, AWC will offer workshops on Dealing with Discipline in several locations around the state. The full-day workshops for managers and supervisors will cover: Common Sense Approach to Progressive Discipline Taking the Mystery Out of Procedural Rights Practice Makes Perfect Exercise Enhancing Performance through Coaching, Expectations & Feedback Thorny Discipline Issues How Might a Judge Rule? The trainers are Janet May and Janice Corbin of Sound Employment Solutions. They offer a good combination of legal and practical knowledge and experience. Are you interested in bringing this course to your region? Do you know of a good, low cost training facility in your jurisdiction? Would you like to help host a workshop in May or June? Contact Carol Greene at AWC to find out more ( , carolg@awcnet.org). 3

4 Weingarten Rights Union Representation In 1975, the United States Supreme Court issued NLRB v. Weingarten, 420 U.S. 251 (1975), a cornerstone case regarding disciplinary action. In the Weingarten case, the Supreme Court determined that requesting union representation at an investigatory interview is a protected activity under the National Labor Relations Act (NLRA), and that it is a violation of the NLRA to deny union representation to an employee in an investigatory interview that the employee reasonably believes may result in disciplinary action. Although public employers are not subject to the National Labor Relations Act, the Washington Public Employment Relations Commission (PERC) has determined that Weingarten rights apply under the Public Employment Collecting Bargaining Act (PECBA), RCW Weingarten Rules of Thumb? The basic rule established under Weingarten and subsequent case law is that an employee is entitled to representation during an interview that the employee reasonably believes may lead to disciplinary action. The key phrase is that the employee must reasonably believe that the interview may lead to disciplinary action. Thus, PERC will look at the perception of the employee, as opposed to the actual intent of the employer. The employee s belief must be reasonable in light of the circumstances surrounding the questioning. The employee must specifically request representation. Under case law, the employer does not have to inform the employee of the right to representation. It is critical, however, that the collective bargaining agreement be reviewed on this point, because many agreements do require the employer to notify the employee of the employee s right to union representation. If the employee requests representation for an investigative interview, the employer has two choices. The employer may either 1) allow the request, or 2) deny the request, not question the employee, and move forward without the benefit of the employee s information. The? risk inherent in the second approach is convincing an arbitrator that the investigation was full, fair, and impartial, despite the absence of information from the accused Weingarten rights do not simply arise in the context of a formal investigation. They may also arise in a less formal situation when a supervisor is questioning an employee about conduct in the workplace and the employee believes his/her answers could result in discipline. It is therefore very important that all your supervisors know and understand Weingarten rights. Weingarten rights do not apply to those situations where the employer has already decided to discipline the employee, and is simply delivering the discipline to the employee. The collective bargaining agreement should be reviewed, however, to ensure that it does not require union representation when discipline is delivered. The union representative is there to represent the employee, but does not control the interview. PERC has provided general guidelines regarding the scope of union representation at an investigatory interview. (See list on following page.) Among other things, the remedy for a Weingarten violation can include an order overturning the disciplinary action if it was based on information obtained in violation of Weingarten, unless the employer can show that it would have made the same decision anyway. Once information has been illegally obtained, it is difficult to show that the decision-maker did not rely on that information in making his/her decision. 4

5 PERC Guidelines on Union Representation in Investigatory Interviews? Initially, the union representative may request information regarding the subject matter of the interview and the issues of concern. If this information has not been provided in advance of the meeting, the union representative may request some time to talk with the employee privately? before the interview begins. Prior to beginning active questioning, the employer may ask the employee to give an initial statement about the matter of concern, and may require the union representative to remain silent while the employee provides the statement. Once questioning begins, however, the union representative can make appropriate objections to questions. For instance, the union representative may note when questions are misleading or unclear, may make objections based on statutory privilege, and may object when he/she believes questions are harassing or intimidating. The union representative may not delay the employee s answers while the representative and employee confer about how the question should be answered, unless the union representative is asserting a statutory privilege. Statutory privileges are matters about which a witness cannot be compelled to provide information. For instance, employees cannot be compelled to share confidential conversations they have had with their attorneys (the attorney-client privilege). The union representative is not free to simply interject comments to interrupt the flow of the interview, and must exercise objections cautiously. At the conclusion of the interview, the union representative may ask the employee clarifying questions. In addition, the union representative may make suggestions regarding other witnesses or information that the employer may want to consider. The employer is not required to bargain with the union representative about the scope of the investigation. The investigation is under the control of the employer and the employer has the discretion to determine how to proceed. Nor is the employer required to bargain with the union representative over the degree of discipline to be imposed. Until recently, Weingarten rights were limited to employees represented by a union. In a recent turnaround, however, the NLRB determined that Weingarten rights apply to nonunionized workplaces. Epilepsy Foundation of Northeast Ohio, 331 N.L.R.B. No. 92 (July 10, 2000). We cannot predict whether or not PERC will extend the protections of Weingarten to nonunionized public employees in our state. In general, however, PERC has followed the precedents of the NLRB and/or has been more generous than the NLRB. Thus, it may be wise to allow nonunionized employees to have a coworker present in an interview upon request, provided that the employee is otherwise entitled to coverage under the state collective bargaining law. About This Newsletter Personnel News is a publication of the Association of Washington Cities. This issue provides general information about the procedural process of issuing discipline to public sector employees. The contents are intended for general information purposes only and should not be construed as legal advice. For further information about this newsletter, contact Deanna Krell at (360) or deannak@awcnet.org. 5

6 Loudermill Rights Due Process In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court held that employees with a property interest in their jobs are entitled to certain due process rights prior to termination. These rights include oral or written notice of the charges against him/her, an explanation of the employer s evidence, and an opportunity to be heard in response to the proposed action. Subsequent cases have expanded Loudermill rights to other disciplinary? actions involving loss of pay, such as suspensions and demotions. Property interests can be created by limitations placed on the employer s ability to discipline employees, such as contractual provisions requiring just cause for discipline or civil service protections requiring good cause for discipline. Because at-will employees do not have a property interest in their jobs, exempt and probationary employees generally are not entitled to Loudermill rights. A Loudermill meeting is not a formal hearing during which witness testimony is presented or formal evidence considered, but rather a more informal meeting during which the employee and/or the employee s representative are given an opportunity to give their side of the story and present other reasons that the contemplated disciplinary action should not occur. The employee may present the information orally or in writing. If the employee is represented, the employee s union representative may attend the Loudermill meeting. If the decision-maker is not personally present at the Loudermill meeting, the employer needs to show that the information from the meeting was actually considered by the decision-maker prior to his/her decision. Thus, someone in attendance will need to be responsible for accurately sharing the information that is presented. Dos and Don ts for Loudermill Meetings Don t Don t Don t Don t make the employee feel comfortable. Explain the process to the employee at the beginning of the meeting and make eye contact with the employee while the employee talks. ask clarifying questions as a follow-up to the employee s information or presentation if you believe the clarification is necessary to make an informed decision. The clarifying questions should be asked respectfully and in a manner that does not convey disbelief or disagreement. interrogate or cross-examine the employee. The employee is not on trial and this is not a formal hearing. engage in behavior that indicates either agreement or disagreement with the employee s position. This includes nodding, frowning, smirking, etc. understand that the union representative has a duty to represent the employee, even it the representative personally believes that the misconduct warrants disciplinary action. feel compelled to allow witness testimony if the employee brings witnesses, unless you are required to allow witnesses pursuant to your collective bargaining agreement. Witnesses are only allowed upon mutual agreement and the Loudermill meeting generally is not the appropriate place to hear those witnesses. follow-up on information presented by the employee that is new and could be considered material to the case, prior to making the final disciplinary decision. treat the meeting as a bargaining session. There is no obligation to make a disciplinary decision on the day of the meeting, nor is there an obligation to lessen the discipline if the original recommendation continues to be appropriate. Do, however, be timely in responding to the employee. read the investigative file carefully prior the Loudermill hearing. By reading the file in advance, you will be better prepared to identify inconsistencies in statements made by the employee during the meeting, and to clarify those inconsistencies prior to making the disciplinary decision. 6

7 Garrity Rights Criminal Misconduct In 1966, the United States Supreme Court issued another important disciplinary decision, Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the Supreme Court determined that pursuant to the 5 th Amendment s protection against self-incrimination, public employees may not be compelled to make a choice between selfincrimination or job forfeiture. Therefore, employees compelled answers may not be used against them in a criminal proceeding. When investigating misconduct that may be criminal in nature, public employers should make a choice between proceeding with a criminal investigation or an administrative investigation. If the employer decides to pursue a criminal investigation, answers should not be compelled from the accused until after completion of the criminal case, unless there is some way to keep the criminal investigation and the administrative investigation totally separate. The burden will be on the employer and the prosecutor to show that the compelled statement was not shared with anyone involved in the criminal case. If the case is investigated administratively, the employer may compel employees to answer questions, but the employees statements may not later be used against them in a criminal proceeding. Mistakes involving Garrity rights could prevent employers from successfully prosecuting employees or from taking disciplinary action. It is important to make sure your supervisors understand when Garrity rights might be applicable. Since Garrity rights are confusing, be sure to check with an attorney before proceeding when the potential for a criminal case exists. Garrity Rights Points to Remember Prior to disciplining an employee for refusing to answer questions, the employer must order the employee to answer the question under threat of disciplinary action, and must ask questions that are specifically, narrowly and directly related to the employee s duties or fitness. Garrity rights attach when an employee is ordered to answer a question as a condition of employment. That type of fact situation is not always limited to an official investigation. For instance, if you have a personnel policy that says employees are ordered to answer all questions posed to them by a supervisor, questioning by a supervisor about something occurring in the workplace could inadvertently trigger Garrity protections. Garrity rights do not apply if the employee gives the information voluntarily without being under a direct order to do so. The only limitation on future use of the compelled statement is the prohibition against use of the information in criminal proceedings against the particular individual. Thus, the information can be used for other purposes, such as the criminal proceedings of other employees, civil lawsuits, administrative inquiries, etc. All public employees have Garrity rights, not just law enforcement personnel. 7

8 Police Officers Bills of Rights Over the past several years, there has been a movement among police unions to lobby their legislators to adopt additional protections for police officers facing misconduct complaints, generally referred to as a Police Officers Bill of Rights. So far, such efforts have been unsuccessful; there is no federal or state-mandated police officers bill of rights. Some jurisdictions within Washington, however, have adopted their own Police Officers Bill of Rights either by ordinance or as part of their collective bargaining agreements. In general, Police Officers Bills of Rights provide procedural protections during investigations and adjudication of misconduct complaints involving sworn law enforcement personnel. The rights are generally more expansive than the other procedural protections discussed previously. They typically include (but are not limited to) dictating when and where interviews may be held, limiting the length of questioning, and specifying the manner of questioning (i.e., no threats or promises). They may also require that employees have access to recordings and notes of interviews. If you have already agreed to a Police Officers Bill of Rights, you need to ensure that people in your organization who investigate misconduct (including outside investigators) and people involved in the disciplinary process have a full understanding of the rights contained in it. If you don t have a Police Officers Bill of Rights, carefully consider the potential negative consequences before agreeing to one: First, you will be bound by the agreements you make. Failure to follow your procedures will limit your ability to take disciplinary action and could result in a claim for wrongful termination in violation of public policy if the person is terminated or claims he/she was forced to resign. See, e.g., Bickford v. City of Seattle, 104 Wash. App. 809, 17 P.3d 1240, review denied (2001). Second, the public may react negatively to your decision. Recent corruption scandals across the country have brought the issue of police accountability to the forefront. In general, Police Officers Bills of Rights provide rights to officers that the average citizen may not be afforded during a criminal investigation. Thus, some citizens wonder why officers are being given preferential treatment, and feel that the preferential treatment makes unethical or illegal activity more likely. See, e.g., Citizen Review Final Panel Report, Section C.II. (1999), Conclusion Although most employers do not enjoy the prospect of disciplining employees, discipline remains an important management function. It is critical that all persons involved in the disciplinary process have a full understanding of the rights discussed in this article. By adhering to the procedural rights of employees, managers can feel more confident in taking necessary disciplinary action because their decisions are more likely to be upheld. Sound Employment Solutions LLC is a consulting firm with expertise in labor relations and human resources management. The firm s partners, Janet May and Janice Corbin, may be contacted at corbinsl@msn.com or You can also view their website at Association of Washington Cities 1076 Franklin Street SE Olympia, WA PRESORT STANDARD US POSTAGE PAID OLYMPIA, WA PERMIT #201 8