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

bkoji@anblaw.com

January 22, 2015

Why is it Important?

Legal costs and the inability to recoup them

Operational costs, morale, public relations, etc.

Key Concepts

• At Will Employment

• Property Interests in Employment Just Cause/Proper Cause

• Liberty Interests/Name-Clearing

Key Concepts

• The Right to Work

• Management Rights (Fla. Stat. 447.209)

Key Concepts

• Progressive Discipline Consistency Progressive Flexibility Punishment fits the crime

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)

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

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

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

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

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!!!

Determine What Applies

Applicable Law Laws governing discrimination,

retaliation, harassment, whistleblower activity, etc.

Employer Charter & Ordinances Employer Policies Collective Bargaining Agreement Employment Contract

Follow Applicable Procedures

• Due Process if Applicable

• Collective Bargaining Agreement

• Employer Policies

• Prior Practices

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?

Review Annual Evaluations

• Are Annual Evaluations and Job Performance Reviews consistent with discipline?

• Is other documentation consistent?

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?

Prior Practice

• Review other similarly-situated employees and situations:• Are they consistent?

• If not, can they be distinguished (i.e., not similarly-situated)

Consider Timing

• Has Employee Engaged in Protected Activity Recently?• Filed workers’ compensation claim?

• Complained of discrimination, harassment, retaliation?

• Engaged in whistleblower activity?

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)

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?

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

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

Thank YouFor questions, comments, criticisms, or suggestions, please give me a call at (813-251-1210) or send me an email at bkoji@anblaw.com.