Know Your Rights Disciplinary Action

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1 Know Your Rights Disciplinary Action What is discipline? Well, basically, discipline occurs when the District tries to suspend, demote, or involuntarily transfer an employee for punitive reasons, or terminates an employee (EC [e]). Employees have due process rights under the law and, specifically, under California s Education Code. Court decisions have further clarified due process rights for California s public school employees, including the Weingarten rights previously discussed. This section will review your due process rights when facing disciplinary action. In most cases of minor misconduct and/or performance issues, progressive discipline is involved. Progressive discipline means that an employee should first be warned before discipline takes place, and once disciplinary action begins it should get progressively more severe. For instance, an employee who is excessively absent might face progressive discipline that looks something like this: Warning(s) that absences are becoming excessive and are creating a hardship for the employer or your coworkers Written warning(s) Written reprimand Unpaid suspension(s) Termination On the other hand, progressive discipline is not a consideration for employee gross misconduct. For instance, an employee charged with theft of district property or striking a student could be terminated without any progressive discipline at all. Employees should not need warnings, reprimands, or progressively worse discipline in order to understand that theft or workplace violence will not be tolerated at all. Regardless of whether progressive discipline is involved or not, employees have due process rights once discipline is initiated. Due Process Rights Generally speaking, here is what an employee can expect if the District decides to take disciplinary action. Investigation: First you can expect an investigation. You will probably be called into a meeting to answer questions about your alleged misconduct or poor performance. Immediately exercise your Wiengarten rights and follow the advice as outlined under the Wiengarten section. If the meeting is cancelled due to a lack of representation, contact your representative immediately. Tell your representative what you know about the situation and provide him/her with any facts you think would support you in proving your innocence or arguing against discipline. If discipline might be appropriate, in your opinion, but you think the District is proposing discipline that is too severe, provide information to your representative on why you think the discipline is too severe. Informing your representative in this way will help them do the best job possible in representing you when the meeting is scheduled. If you are unable to provide this information to your representative before the investigatory meeting, it is important that you follow the advice under Wiengarten rights and then provide any information you did not provide during the investigatory meeting to your representative after the meeting. Sometimes people forget things that could help them during the investigatory meeting. If you forget something you think might help you, contact your representative as soon as possible to let him/her know. Your representative will help you to provide any new or forgotten information that might help your case that was not provided during the investigatory meeting.

2 Why tell your representative, why not just tell your supervisor or the investigator? Because your representative has been fully trained on the disciplinary process and has a better idea of what kinds of information might help you and what kinds of information might actually hurt you. Collaborate with your representative to ensure that only information that helps you is provided. Should you be dishonest during an investigation if the truth could hurt you? NO! However, don t volunteer harmful information unless you are directly asked. Make them ask the right question and then answer truthfully. Keep your answers short and simple and don t fill in the blanks for the District. Always make them ask the right question before answering. You can also pre arrange a signal with your representative so that he/she requests a break or caucus with you. If you are asked a question and you know the answer might harm you, you can signal your representative that you want to talk with him/her privately before answering the question. Your representative can then help you frame your response. If you haven t pre arranged a signal, then you can always ask for a break or a caucus yourself before answering and then discuss it with your representative privately. What if you are asked for a written statement? If you are asked you can decline. If you are directed to give a written statement do NOT refuse to provide it. Tell the investigator that you will need some time to collect your thoughts and ensure that it is accurate and factual. Don t let them pressure you into writing one right there on the spot. If nothing else, tell the investigator you will provide the statement as soon as you have secured Union representation. Then before providing any written statement, make a draft and let your representative review it for you before you submit it to the District. What if you are told you are fired on the spot? A probationary employee can be released at any time during probation for a good reason, a bad reason, or no reason at all. If you are probationary, you could be released on the spot but, the District generally will release you from probation in writing. If you are no longer probationary and are now a regular permanent classified employee, you CANNOT be fired on the spot. You have due process rights which will be outlined in the next section of this training module. Immediately contact your representative if this happens and CSEA will ensure that you are afforded all of your due process rights. What if I am questioned about conduct that is criminal or illegal? You have a constitutional right not to incriminate yourself under the Fifth Amendment. An investigation of criminal activity by the District could be used in court if you are later arrested for the alleged crime. Questions about criminal activity should be answered as follows: On advice of my representative I am exercising my Fifth Amendment rights and declining to answer that question at this time. Do not discuss alleged criminal activity with your representative unless he/she is an attorney on staff with CSEA. There is no attorney/client privilege for Job Stewards, Chapter Presidents, or Labor Relations Representatives. Therefore, if you are later arrested and charged with a crime and you ve discussed it with your representative, he/she can be compelled to testify as to what you told him/her in a court of law. Causes for Discipline: There are many reasons you might be subject to disciplinary action. You may only be disciplined for cause. All causes for discipline must be spelled out by the District and are contained in either your Collective Bargaining Agreement or in District Policy. Below is a general example of causes for discipline. Your district may have more or different causes/ Falsifying information to the District Possessing alcohol or drugs on the job or being under the influence Conviction of a sex or drug offense as prescribed by law Violation of District policies, rules, or procedures Dishonesty Drinking or taking drugs on the job Absence without leave or excessive absenteeism Incompetency or Inefficiency Neglect of duty Theft or Misuse of District property Insubordination Discourteous treatment of public, students or staff

3 Recommendation for Disciplinary Action: If, after the investigation, the District determines that there is cause to discipline an employee, they will make a written recommendation for Discipline. Usually this recommendation is made by a middle level manager, like a Principal or Director. Usually, the charge is hand delivered and/or sent to the employee by certified mail. The recommendation for discipline will contain a statement of the cause(s) for discipline. It MUST also contain allegations against the employee detailing the facts that support the cause for discipline. For example, the cause for discipline may be excessive absenteeism, and the allegation might state that Employee X has used all leaves and vacation and then used extended sick leave in each of the last 3 years and has been absent for 75 days this year without providing any doctor s notes to support the absences. The recommendation for disciplinary action will also outline exactly what kind of disciplinary action is being recommended, e.g. suspension, demotion, or termination. Generally, a recommendation for disciplinary action will also contain attachments that include the Discipline article in the Collective Bargaining Agreement or Board Policy. It may also include attachments detailing due process rights under applicable law such as Education Code Sections and Your Labor Relations Representative can give you the applicable Education Code sections on due process rights if you work in a Community College or in a District that has a merit system in place. Except in cases of short suspensions, sometimes it must also outline your rights to an administrative review of the recommendation for disciplinary action. This administrative review is commonly referred to as a Skelly Hearing. In some Districts, there will also be an Appeal form enclosed in the Recommendation for Disciplinary Action. While CSEA believes it is premature to give you an appeal form before your Skelly hearing it is not unlawful for the District to do this. If there is an Appeal Form enclosed it must be filled out and submitted within a specified time or you may lose your rights to appeal a recommended disciplinary action. It is critical that if you see an appeal form you fill it out and immediately submit it as directed to the appropriate administrator or Personnel/Human Resources Director. Innocent employees have been fired because they did not submit their appeal in time. Skelly Hearing: A Skelly hearing may not be required under the Collective Bargaining Agreement or Board Policy for short suspensions. CSEA considers a short suspension to be five (5) days or less. However, you or your representative should always check first to be certain whether or not you are entitled to a Skelly Hearing under these circumstances. Usually the Recommendation for Disciplinary Action will either set a date for the Skelly Hearing or will direct you or your representative to contact the designated administrator who will conduct the Skelly Hearing to set a date within a set time period. Either way you have a right to representation at the Skelly Hearing. The Administrator who conducts the Skelly Hearing (Skelly Officer) may not be an administrator who has been involved in any way with bringing the charges against you. Prior to the Skelly hearing it is important that you contact your representative and set up a meeting with him/her before the Skelly hearing. He/she will want to review the charges with you and will assist you in forming your responses to each of the charges against you. The Skelly Hearing is not a formal hearing. It is an informal opportunity for an employee facing disciplinary action to give his/her side of the story to the Skelly Officer. The Skelly Officer can decide that the recommended disciplinary

4 action should be upheld, should be reduced, or should not occur. Except in the most blatant cases of false charges, you should expect that a Skelly Officer will be inclined to either uphold the charges and recommended level of discipline or a reduced level of discipline. You don t need to necessarily appear at a meeting with the Skelly Officer. If you are more comfortable providing a written response to the Skelly Officer you can do that instead. We recommend that you have your representative review any written responses or statements you plan to give to the District before you actually submit it. If you want to present your side of the story in person to the Skelly Officer, you should always make sure you have a Union Representative with you to protect you and your rights. At the Skelly hearing the Skelly Officer will generally review the charges with you and then ask you to provide any information that you believe is relevant and which would support your contention that you should either not be disciplined or not be disciplined so harshly. This is also the time when you can provide a list of witnesses that can support your side of the story. At the end of the Skelly hearing, ask what will happen next. Ask the Skelly Officer if he/she will be interviewing YOUR witnesses and how long he/she estimates it will take to finish those interviews. Ask how long it will take him/her to make a decision on the charges. Ask what the process will be if the Skelly Officer agrees with your version of the facts rather than the District s version contained in the Recommendation for Disciplinary Action. Ask what the process will be if the Skelly Officer decides to move forward with the disciplinary action or some reduced disciplinary action. Notice of Intent to Discipline: After the Skelly Hearing, the Skelly Officer will review the evidence, your side of the story, interview witnesses, and make a decision on whether the District will move forward with the disciplinary action. If he/she decides that the District should move forward with discipline, he/she will issue a Notice of Intent to Discipline. It will be similar to the Recommendation for Discipline and will contain the causes for discipline and the facts that support those charges. It may also contain attachments outlining your due process rights under the Collective Bargaining Agreement, Board Policy, and possibly the Education Code. If you did not receive an Appeal form with the initial Recommendation for Disciplinary Action, it will definitely be enclosed with this Notice. Again, you must immediately fill out the form and submit it as directed within the specified timelines or you will lose your right to appeal. Generally, you will have a maximum of 5 days to submit your appeal. Appeal Hearing: This is a formal hearing. At this hearing you will be allowed to testify, present any documents or exhibits in your defense, and call witnesses on your behalf. Do not attempt to handle an Appeal Hearing by yourself. If you haven t gotten your Union representative involved yet, it is critical they be involved at this step. Usually, only Labor Relations Representatives handle appeal hearings on your behalf. Appeal hearings are held in one of two ways. The most common is that the appeal is heard directly by the School Board. Under the law, the School Board has the final right to determine if discipline is appropriate. They will hear all the testimony and review all the evidence and render the decision themselves. The second kind of appeal hearing is conducted by an Administrative Law Judge (ALJ) or neutral hearing officer. In most cases the ALJ or Hearing Officer will conduct a full blown evidentiary hearing just like the Board and then review all testimony and evidence. He/she will then render a decision which can be final and binding if CSEA and the District have negotiated binding arbitration of discipline. Check your contract to see if you have binding arbitration of discipline. It is far more common that the ALJ or Hearing Officers decision is advisory to the Board. The Board will review his/her advisory decision and they may adopt it completely, modify it, or completely ignore it. In some cases, if they feel they need more information, they may refer the case back to the ALJ or Hearing Officer to gather more evidence or testimony. The Board can enforce a more severe disciplinary action than what the ALJ or Hearing Officer recommends, but generally cannot enforce a more severe disciplinary action than was contained in the Notice of Intent to Discipline.

5 The Board can also enforce a less severe disciplinary action than was contained in the notice, or the ALJ/Hearing Officer decision. They can also ignore the ALJ/Hearing Officer s decision. This means if the ALJ/Hearing Officer recommends no discipline, the Board can discipline you anyway. Or, if the recommendation was for discipline, the Board could ignore it and decide not to discipline you. Unless your contract has binding arbitration of discipline, the Board will always have the final say on whether you should be disciplined and how severe it should be. Unpaid or Emergency Suspensions: Normally, an employee facing disciplinary action will be allowed to continue to work or be placed on paid administrative leave at least until the Skelly Officer renders his/her decision. If the Skelly Officer supports a suspension or termination, the District can then place the employee on an unpaid suspension pending appeal. So for instance, the Skelly Officer recommends a 10 day suspension. The District could impose the unpaid suspension immediately pending the appeal. If the employee wins the appeal or gets the suspension reduced, the District would have to provide back pay. If the 10 day suspension were upheld, then it would already be served. In the case of a termination, they could place the employee on indefinite unpaid administrative leave until the appeal decision is rendered. If the employee wins, they get back pay, if they lose their appeal, they lose the pay. In rare emergency situations where the employer believes that the employee poses an unreasonable threat to the health and safety of employees, students, or the public, the District may place the employee on an unpaid emergency suspension pending the appeal decision. They can do this as soon as they decide to recommend discipline and before the Skelly Hearing. Again, if the employee goes through the process and wins, they get back pay. If they go through the process and lose, they are not entitled to any back pay unless the appeal decision is for an unpaid suspension that is for a shorter time period than the emergency suspension. In that case the employee would get back pay for the difference.

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