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Employee Discipline Process, Procedure
& Off-Duty MisconductNYCOM Personnel School 2014
March 14, 2014Edward A. Trevvett, Esq.etrevvett@harrisbeach.com99 Garnsey RoadPittsford, New York 14534(585) 419-8643
www.harrisbeach.com
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Why is Employee Discipline Even Necessary?
Public employers may seek to disciplineemployee for one of two reasons:
Employee has committed some type ofmisconduct ;Employee has demonstrated incompetence in theperformance of his or her job duties.
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Restrictions on Public Employee Discipline
The same reasons which are generally acceptablefor disciplining employees in private-sectoremployment may serve as the basis for discipline inpublic-sector employment.
However , public employers are generally held to adifferent standard than private employersthey arebound by specific statutory and case law relating to
the requirements of a public employer to effectdischarge or other disciplinary policies.
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What Governs Disciplinary Proceedings?
Disciplinary proceedings involving publicemployees are governed by:
New York Civil Service Law; and/or Negotiated agreements.
Each statute and/or agreement provides for, orrelates to, the procedures an employer mustfollow in various stages of a disciplinaryproceeding.
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Who is Entitled to Due Process Protections?
Right to due process protection depends on whetherthe employee has acquired a liberty or propertyinterest in his or her employment.
Employee must have a legitimate claim of
entitlement to, as compared with a mere expectationof , that interest in his or her position.
Courts look to Section 75 of the Civil Service Law
and other various statutes to determine whether apublic employee has a property interest in his orher position.
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Once Legitimate Claim of Entitlement to
Continued EmploymentDue ProcessSafeguards Come Into Play
Employees protected by Section 75 may bedisciplined only upon a finding of incompetency ormisconduct shown after a hearing upon statedcharges .
In effect, this affords employees within its scope aproperty interest in their public employment position,and thus, its due process safeguards come intoplay.
However, Section 75 protections shall not modify orreplace any written collective agreement between apublic employer and employee organization . . . .
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Due Process Rights of Section 75
Dependent on Appointment Status andJurisdictional Classification
Section 75 expressly protects:Permanent employees in competitive class of civilservice;Exempt volunteer firefighters;Veterans honorably discharged or released underhonorable circumstances holding positions bypermanent appointment or employment in
classified services, except private secretaries,cashiers, deputies;
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Due Process Rights of Section 75
Dependent on Appointment Status andJurisdictional Classification
Permanent employees in non-competitive classwho completed at least 5 years of continuousservice in that class (except for confidential orpolicy influencing positions);Employees holding certain Homemaker or Home
Aide positions in New York City; and
Certain police detectives.
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Due Process Rights of Section 75
Dependent on Appointment Status andJurisdictional Classification
Section 75s protections only apply to personswho hold a public service position by permanentemployment they do not apply to temporary orprovisional employees.No distinction is made between full-timeemployees and employees who are part-time orpaid on an hourly or per diem basisSection75s protections apply to each.
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Probation
Probationer has limited Section 75 protection must pass probationary term prior to attaining fulltenure and property interest in right to publicposition:
During minimum period of probation, employee isentitled 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 ahearing, but must be timely notified that probationarystatus will continue beyond minimum period.
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Just Cause Standard
Just cause is a term generally used inemployment contracts and union contracts todetermine when an employer is justified indisciplining or discharging an employee.
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Just Cause Standard
The standard serves as a useful guidepost : Against which to review disciplinary decisions; andTo protect against employer liability associatedwith employee discipline.
Employers should approach every disciplinarysituation assuming each action would have to be
justified under a just cause standard.
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Just Cause Standard
The seven-factor just cause test focuses onwhether the employer:
Has done a proper job of investigating the matter; andHas adequate proof that the employee was guilty ofthe misconduct charged.
A no to any one of the seven questionsnormally signifies that just cause for the
disciplinary action did not exist.
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Seven Tests of Just Cause
Does the employee have notice of the possibleor probable disciplinary consequences of his orher conduct?Is the rule reasonably related to:
The orderly, efficient, and safe operation of thebusiness; andThe performance that the employer might properlyexpect of the employee?
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Seven Tests of Just Cause
Has the employer applied its rules, orders, andpenalties even-handedly and withoutdiscrimination to all employees?Is the degree of discipline reasonably related to:
The seriousness of the offense; andThe employees employment record?
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Good Practice in Any Public EmploymentContext
The procedures followed and steps taken beforecharges are served are the key to any formaldisciplinary proceeding.The principles of due process employeenotice and an opportunity for the employee to beheard should apply throughout the disciplinaryprocess, including in the preliminary stages ofthe employment relationship.
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Sound Personnel Practices
An employer in any disciplinary proceeding mustclearly show:
What rule the employee violated;What performance standard was not met or whatduty was breached; andThat the employee knew of, and understood, the
rule, standard and/or duty.
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Sound Personnel Practices
With this burden in mind, there are many steps apublic employer can, and should , take longbefore any question of discipline arises to both:
Reduce the chances of misconduct orincompetence; andFacilitate successful resolution of such problems,if and when they occur.
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Importance of Documentation
Documentation is critical at every step of theprocess, whether discipline is imposed, restrictedto a verbal warning, or not imposed at all.Detailed and proper documentation can help anemployer defend against employment claims;conversely, lack of documentation can lead tolegal liability; conversely,
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Importance of Documentation
Employer should not wait until initiatingdisciplinary process against employee to begindocumenting.Creating a record of a course of discipline asearly as possible makes it much harder for anemployee to point to a later instance of disciplineas, for example, retaliatory.
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Importance of Documentation
Basic documents any employer should maintain:Documents showing that each employee hasadequate notice of conduct and expectations(notice documents);
Records of incompetency/misconduct andconferences/counseling;Written performance appraisals (with employee
acknowledgement receipt);Records of progressive discipline policy/actions ;Disciplinary investigation documents .
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Notice Documents
A well-supported disciplinary policy begins withproviding notice to the employee anddocumenting employees receipt of that notice.
Notice documents (e.g., employee handbooks)provide the employee with:
Standards of conduct; and
Expectations of performance.
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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 whichhe or she was provided; andThat the employee has been given an opportunityto ask questions about the standards and
expectations and/or that he or she understandswho is the point of contact for any suchquestions.
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Notice Documents
Notice documents should be reissued any timethere is a rule change or when the employeewould confront a new standard of conduct orexpectation of performance for any reason.
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Records of Incompetency/Misconduct
It is important to keep records of any incident inwhich a supervisor believes that an employeehas shown incompetency or has been guilty ofmisconduct, since these charges must be proven
by employer at requisite disciplinary hearing . An employer should instruct and trainsupervisory personnel to take a proactive
approach in creating and maintaining appropriaterecords regarding any incident which may lead todisciplinary action.
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Records of Conferences/Counseling
Advisable (though not legally required) forsupervisor to communicate to, and discuss with,employee any incident as it occursthis givesthe employee adequate notice and an
opportunity to explain .Formal conference or counseling session is notitself a form of discipline. However, it must be
documented not as a written reprimand, but as anondisciplinary counseling memorandum.
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Performance Appraisals
Several benefits of correctly implementedperformance appraisal process:
Allows for:Review and assessment of employee performance;Setting of goals and identification of problems;Discussion of potential career advancement; andProvision of useful documentation for future
progressive discipline.Important to be honest , accurate , detailed , andconsistent .
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Progressive Disciplinary Policy
A progressive disciplinary policy is usefulbecause it:
Gives the employee notice of when his or herperformance violated applicable standards, with
coinciding lowest level of consequences ; Addresses (and provides record of) repeatedemployee problems early on (prevents last minuteovercompensation by employer); andBuilds link between employee performance anddiscipline to undermine idea that discipline isconnected to some other event.
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Typical Progressive Disciplinary Policy
Progressive disciplinary policies typically proceedin ascending order of severity :
Verbal counseling (typically not considered adverse);Written counseling memoranda (and where
incompetency is the underlying issue, may beaccompanied by performance improvement plan)(typically not adverse);Suspension (with or without pay);Last-change agreement; andTermination
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Investigation Following TriggeringEvent/Prior to Any Disciplinary orTermination DecisionIn order to successfully establish incompetency
or misconduct , an employer must clearly show:What rule was violated; what performance standardwas 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 isessential in determining whether and whatdisciplinary action warranted.
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Determining the Scope of the Investigation
Certain factors suggest the need for a full andformal investigation (while sometimes issues canbe 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., widespreadharassment).
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Preparing for a Full & Formal Investigation
Promptly taking action to prepare for aninvestigation is critical. In so preparing, anemployer should take care to:
Review and follow policy and procedure;
Determine the issues to be investigated;Determine what information is relevant andpreserve it; and
If necessary, take appropriate steps to safeguardthe workplace.
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Selecting the Investigator
The investigation should only be conducted byan individual who can be fair , accurate , andimpartial .No individual who will ultimately decide whetherthe charges have been proven or whether apenalty is appropriate should be involved in theinvestigation.
An attorney can be helpful in advising as to theprocess, evaluation of evidence, anddetermination of appropriate resolution.
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Interviewing Subject Employee
The appointing authority has the right to questionthe employee concerning his or her performanceor potential discharge, and the employee isobligated to respond to the inquiryrefusal to do
so can be basis for a disciplinary action.However, an employee may have a right to berepresented during the questioningthis
determination must be made before questioningbegins .
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Offenses Subject to Disciplinary Action
There is no comprehensive list of acts and/oromissions which constitutes incompetency ormisconduct.Good judgment , common sense , and a review ofemployers rules and performance standards canlikely provide a sound basis for a disciplinaryaction.
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Off-Duty Misconduct
An employee has the obligation to honor thestandards of behavior which an employer has theright to expect of him, even during off-dutyhours. (Pollett v. McGourty , 111 AD2d 1023 (3d Dept 1985)).
However, the employer must show somerational relationship between the conductsought to be sanctioned and the employees job
position.
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Off-Duty Misconduct
Much of this determination will depend on the
position involved and the employers need tomaintain the integrity and trust of the person holdingthat position .
For example, an act committed off the employerspremises and not connected in any way with the dutiesof a public employees job may nevertheless be causefor disciplinary action if it reflects negatively upon the
moral character or fitness of the employee.However, off-duty conduct that has no bearing on anemployees job duties and responsibilities may not bea proper cause for discipline.
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Off-Duty Misconduct
A case example:Correction officer engaged in the following off-dutyconduct:
Fraudulently using license number issued to homeimprovement company with which he was not affiliatedand holding it out as his own;Executing a contract with a homeowner for renovationsusing that license number;
Accepting $35,000 from a homeowner for work that hefailed to complete.
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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 jobas a correction officer, charged with overseeingcriminal offenders in the jail system;Ignoring permit requirements demonstrated flagrant
disregard for laws . . . at odds with duties as correctionofficer; andFailure to perform on contract was unbecomingconduct that discredited [his employer].
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Off-Duty Misconduct
First Amendment Issues?
Although a public employee does not relinquish allFirst Amendment rights by reason of publicemployment, a public employer may impose certainrestraints on off-duty speech of its employees whichwould be unconstitutional if applied to the generalpublic.Off-duty public employees do have a right to speak on
matters of public concern (e.g., matters concerninggovernment policies that are of interest to the public atlarge and are a subject on which public employee isuniquely qualified to comment).
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Off-Duty Misconduct
However , public employee can be disciplined for off-duty speech where the employer has a justification farstronger than mere speculation for doing so.
For example the Supreme Court upheld the terminationof a police officer for selling tapes of himself online,
dressed in a generic police officer uniform, engaging insexually explicit acts.Rejecting the employees First Amendment argument,the Court explained that because the expression was
widely broadcast, linked to the employees official statusas a police officer, and designed to exploit his employersmission, it was detrimental to the mission and functionsof his employer.
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Due Process & The Procedural Requirements
for Public Employers
The procedures followed and the steps takenbefore charges are served lay the foundation forthe formal disciplinary proceeding.
Therefore, a public employer must alwaysdemonstrate that due process has been affordedbefore taking final action to discipline or
discharge an employee, even when egregiousmisconduct has occurred.
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ProcedureTiming Requirements
Generally, a disciplinary proceeding shall not becommenced against an employee more than 18months after the occurrence of the allegedincompetency or misconduct complained of.
Except:In the case of a managerial or confidentialemployee, the proceeding shall be commenced nolater than one year after the occurrence of the allegedincompetency or misconduct complained of.Where the employees actions, if proven, wouldconstitute a crime, the proceeding may be commencedat any time.
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ProcedurePreparation of Charges
Section 75 provides certain basic rights to an
employee against whom disciplinary action isproposed, 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 writtenresponse.
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ProcedurePreparation of Charges
The principle purpose of the charges is to
apprise the employee of the specific offenses ofwhich he or she is accused and that which theemployer intends to prove at the disciplinary
hearing.No particular documentary form, but each act oromission constituting the charges must be
sufficiently identified and particularized withreasonable specificity .
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ProcedurePreparation of Charges
If the specifications are vague, the employeemay ask for, and be given, a bill of particulars.Instances of incompetency or misconduct notcovered in the charges, even if proven at thehearing , may not form the basis for adetermination of guilt.
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ProcedurePreparation of Charges
In addition to listing the charges/specifications,
the form should also provide the employee withthe 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 agentrepresentative;Possible penalties; andNotice of suspension, if applicable.
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ProcedureSuspension
An employee who has been served with chargesmay be suspended , without pay, for a period notto exceed 30 calendar days pending the hearing
and determination of charges, unless anegotiated agreement or existing statuteprovides for a longer suspension.
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ProcedurePrehearing Interrogation
An employee who is the potential subject ofdisciplinary action must be provided with advancewritten notice of the right to representation by his or
her certified or recognized employee organizationduring employer questioning (not by his or herattorney).
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ProcedurePrehearing Interrogation
An employer may not proceed with prehearing
questioning without giving the employee areasonable period of time to acquirerepresentation, if requested.
If the employee is unable to obtain representationwithin a reasonable period of time, the employerhas the right to then question the employee.
Should a hearing officer determine a reasonableperiod of time was not given, anything obtained fromthe questioning must be excluded.
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ProcedureDesignation of Hearing Officer
The employee is entitled to a hearing conductedby the body or officer having the power toremove the employee, or by a designee of thatofficer or body.
Village and city mayors have the power to removevillage and city employees, respectively, or todelegate that power, subject to Section 75sprocedural protections.
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ProcedureDesignation of Hearing Officer
If the appointing officer or authority is not going
to conduct the hearing, a hearing officer must beofficially designated, in writing , to perform thatfunction.
The failure to have proper written designation is a jurisdictional defect, fatal to the proceeding andcannot be cured.
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ProcedureDesignation of Hearing Officer
The hearing officer need not be a deputy or
subordinate employee of the department oragency of the subject employeerather, theofficer may be someone not connected with the
agency.However, in either case, the hearing officer mustbe unbiased and not be someone who has
acquired knowledge of the facts relating to thecharge prior to the hearing.
f ff
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ProcedureDesignation of Hearing Officer
Where hearing officer is appointed, the removing
officer or body must review the record madebefore the hearing officer and the hearingofficers recommendation in arriving at a
decision.The removing officer or body must not beinvolved in the disciplinary process itself .
P d H i
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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 thehearing is less formal than a court of law),because the hearing is adversarial , with the
burden of proving incompetency or misconducton the employer .
Th D i i
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The Determination
The final determination must be made by the
appointing officer or authority and should not bedelegated unless the appointing officer isdisqualified due to personal involvement in thematter.
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 acharge only if there is substantial evidence in therecord to support such a finding.
Th D t i ti P lti
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The DeterminationPenalties
Upon a finding of guilt on one or more specifications ,the penalty or punishment may consist of one of thefollowing:
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 suspendedmay be considered as part of the penalty.
Th D t i ti P lti
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The DeterminationPenalties
The penalty must depend on the gravity of theoffensealthough not legally required, mosthearing officers and appointing authorities followthe doctrine of progressive discipline whendealing with charges less serious than those
warranting immediate dismissal.The penalty may also reflect due consideration forthe employees employment record, as long as
employee is on notice of that consideration andgiven a chance to respond before penalty is set.
The Determination Acquittal
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The DeterminationAcquittal
If acquitted, the employee must be restored tohis or her position, with full back pay for period ofsuspension (if applicable), less unemployment
benefits received.
Notice of Determination
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Notice of Determination
There is no requisite form for the determination to
be given to the employee. However, the followingguidelines are informative :Not guilty on all specifications Notice should so state,should notify the employee (if suspended) to reportback to work, and should indicate that back salary willbe paid.Guilty on one or more specifications Notice should
indicate the particular specifications for whichemployee was found guilty, as well as penaltiesimposed (including effective dates, when appropriate).
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Questions?