I.

INTRODUCTION

Back by popular demand, our "Public Sector Discipline Roundtable" will address all facets of public sector discipline, with a focus on providing practical answers to audience questions. As a structural framework for the Roundtable, the following text sets forth a variety of concepts that will help (a) reduce the need for disciplinary action, and (b) ensure that disciplinary action, if taken, will be sustained on appeal.

II.

MODERNIZE YOUR APPRAISAL SYSTEM TO IMPROVE PERFORMANCE AND ADDRESS PERFORMANCE PROBLEMS

A comprehensive review of your overall performance-appraisal and discipline systems can help reduce the chance of litigation arising from those systems. Indeed, public sector employers can significantly reduce the need to take disciplinary action through a strong, ongoing and positive system of performance appraisal.

This checklist helps evaluate the value (or harm) performance appraisals can bring to a discipline case:

• Is there a specific written understanding with each employee about the scope of the employee’s duties and responsibilities, including clearly defined quality and quantity standards?
• Are those standards consistent within the work unit and the employer?
• Is that understanding formally renewed at least once a year?
• Is that understanding periodically renewed on an informal basis?
• Is that understanding demonstrably tied to the goals, objectives and responsibilities of the employee’s division or department?
• Does the employer respond to performance issues with appropriate training?
• Does the employer provide the resources and tools necessary for the employee to perform his/her job?
• Is the employee’s performance periodically monitored?
• Is the employee’s performance formally reviewed on an annual basis?
• Are the employee’s performance appraisals consistent with the employee’s receipt of any merit-based pay?
• Has the employer worked for a reasonable period of time in a positive manner to assist the employee in improving his/her performance prior to resorting to disciplinary action?

III.

UTILIZE EFFECTIVE INVESTIGATION TECHNIQUES

The cause for and the process used to impose discipline are equally important. It is critical that the investigation which led to the decision to impose discipline be impartial and thorough. Prior to starting the investigation, time should be spent thoughtfully planning the investigation, including who will do the investigation. Although many investigations can be done in-house, disciplinary investigations involving high-level employees, misconduct potentially implicating legal liability (e.g., sexual harassment) and/or sensitive issues are often best served by the use of an outside investigator. Often times the expense incurred by the use of an outside investigator is more than recouped by the savings in back pay and legal fees potentially incurred as the result of a substantively or procedurally flawed investigation. It is critical that the investigator be given clear direction regarding the scope of the investigation. The employer should also not relinquish its authority and ability to make conclusions from the factual findings of the investigation.

This checklist summarizes the things to be considered in planning an impartial and thorough investigation:

1. Is the investigator "impartial?"

a) Is the investigator free from involvement in the underlying matters?

b) Is the investigator free from direct and indirect influence from individuals perceived to be biased and/or interested?

2. Is the investigator adequately familiar with the job duties and requirements of the employee being investigated?

3. Is the investigator adequately familiar with applicable policies and procedures of the agency and the relevant department, including:

a) Personnel rules?

b) Department policies and procedures?

c) Collective bargaining agreements?

4. Is the investigator adequately familiar with the legal principles applicable to the underlying employment issues, e.g., sexual harassment?

5. Is the investigator adequately familiar with any special procedural requirements applicable to the employees who will be participating in the investigation, e.g., Public Safety Officers Procedural Bill of Rights?

6. Has the investigator been given clear parameters regarding:

a) The point of the investigation?

b) The scope of the investigation?

c) The method of documentation of the investigation?

d) The format of the investigation report?

e) The expected time frame for completion of the investigation?

IV.

ANTICIPATE AND DEFEAT COMMON DEFENSES TO DISCIPLINARY ACTIONS

A.

Past Practice

Employees who are charged with disciplinary offenses often challenge the action on the basis of "past practice," i.e., that the employer’s past or existing practices did not prohibit the employee from doing what was alleged. "Past practice" contentions typically rely on alleged lax enforcement of "established" work rules, job standards or disciplinary rules.

"Past practice" is one of the most significant terms in labor relations. It is a concept used in arbitration for assessing the meaning of an ambiguous contract provision. Where the contract is ambiguous on a disputed issue, the employer’s "practices" on the issue are considered. Where a practice meets the accepted definition of an "established past practice," it then can be used to define ambiguous contract terms.

What does it take to establish a past practice? Arbitrators and civil service boards apply a general rule flexibly on a case-by-case basis. The essential elements are:

• A continuous practice that has existed over an extended period of time;
• A practice that has existed "openly and notoriously" so that it has been known to the employer and union;
• The practice is similar to the matter in issue and is, therefore, "applicable;" and
• The practice is within the "scope of representation."

Unions and their counsel have used the tool of past practice to strong effect in discipline cases: they often contend that discipline taken for proven offenses should be voided because the employer has a practice of ignoring, tolerating or accepting the allegedly inappropriate conduct. The defense normally comes into play once the employer decides to enforce work rules or disciplinary standards more stringently than had been the case in the past. Often, allegations of "past practice" and "lax enforcement" are factually groundless, serving as a smokescreen that can be detected and disposed of readily, either in the pre-disciplinary process or on appeal. Sometimes, however, the defense may have appeal. To avoid a meritorious defense, the employer, through its supervisors in each work unit, needs to continuously monitor work practices.

The key considerations for the employer are set forth in the following checklists:

General guidelines for assessing whether a "past practice" problem may exist are:

1. Was the rule or standard set forth in writing to employees?

2. Did employees receive training or instruction in connection with the rule or standard before they were disciplined?

3. Has the rule or standard been consistently required of employees in the relevant work unit? (If not, see Lax Prior Enforcement Checklist below.)

4. In enforcing the rule or standard, did the employer provide counseling and "progressive discipline?"

5. Do the evaluations of all employees specifically address their compliance with all work rules and standards?

6. Is the employer uniformly enforcing its rules or standards?

In addition to the elements in checklist three, the following elements need to be considered when the employer desires to tighten work standards or enforce work rules which were previously unenforced:

1. Has the employer specifically alerted employees, both in writing and in work group meetings, that they will be held to the existing, stated standard?

2. Were employees given the opportunity to receive training (if needed) over the tightened standards before they were applied to them?

3. Has the employer appropriately addressed any supervisory or management problems that contributed to the lax enforcement?

4. Has the employer examined any existing contracts for language allowing or prohibiting implementation of new performance standards during the life of the collective bargaining agreement?

5. (If applicable): Has the employer notified the union of its intent to bring employees up to the stated standard of performance?

A special set of rules applies when the employer desires to implement new work rules, especially in a unionized setting:

1. Is the new rule or standard within the scope of negotiations?

2. Does the collective bargaining agreement or memorandum of understanding allow the employer to modify or implement standards during the life of the contract?

3. If the rule is a basic departure from the status quo, has the employer given the union notice and an opportunity to request negotiation over the rule before implementation? If not, does the MOU allow the employer to act unilaterally (i.e., did the union "waive" its right to negotiate over the subject matter)?

4. Has the employer notified employees of the new rule?

5. Has the employer offered and provided any training reasonably necessary to ensure that employees are capable of performing up to standard?

6. Has the employer enforced the new rule or standard in an even handed manner?

The best way to reduce the need to discipline and to further guarantee the success of disciplinary actions is to implement and administer a system-wide performance-based structure, with goals, agreed upon operating principles, ongoing evaluation, training and coaching, and "progressive" discipline.

1. Does each work unit have an annual plan that defines quantity and quality expectations?

2. Are managers and supervisors specifically responsible for monitoring work practices?

3. Do the evaluations and compensation of managers and supervisors give strong weight to the degree of success of the work unit, including:

a) Production levels (quality and quantity)?

b) Teamwork?

c) Morale?

d) Efficiency?

e) Communication (including regular communication of performance standards, discussion of work production relative to work goals and timely completion of periodic evaluations)?

f) Training programs?

g) Compliance with other policies of the employer (equal employment, etc.)?

4. Does the collective bargaining agreement contain impediments to effective enforcement of work rules and disciplinary standards? If so, this should be the focus of upcoming negotiations.

a) "Existing benefits" clause

b) Limitations on the employer’s right to effect discipline

5. Does the collective bargaining agreement protect the employer’s management right to effect appropriate discipline? If not, this should be the focus of upcoming negotiations.

6. Do the employer’s personnel rules clearly define "at-will" employment categories and eliminate the prospect that "at-will" employees could be viewed as having "for cause" protection?

B.

Disparate Treatment/Discrimination

Related to the "past practice" defense is "disparate treatment," i.e., the contention that the employer’s disciplinary action was inconsistent with action taken against other employees similarly situated. This defense arises in one or both of two situations: (1) where the employee contests the discipline by arguing that other employees have not been disciplined, or have been disciplined less harshly, for the same or similar misconduct; and/or (2) where the employee, claiming protected class status by virtue of his race, gender, age, etc., contests the discipline by asserting that employees who are not of the claimed protected status have not been disciplined or have been disciplined less harshly for the same or similar misconduct. This defense often gives rise to intense battles in discipline cases. The battlefield can include demands that the employer produce the disciplinary records of other employees and allegations of other discriminatory acts by the employer.

There are strong reasons for arbitrators and civil service commissions to place strict limits on this defense. First, "disparate treatment" claims are based on the idea that an employee who is guilty of specific forms of misconduct can be relieved of responsibility simply because the employer failed to catch or take action against another. From a policy standpoint, this is not sensible. Second, the defense can only be applied in connection with employees who are "similarly situated." Talmo v. Civil Service Com., 231 Cal. App. 3d 210 (1991). To assess the similarity of situations, the employer would be required to air the merits of the dispute involving the second employee, and would then be required to evaluate the disciplinary records of the second employee in a further check for similarities. Third, the process invades the privacy rights of other employees, since it is always based on what discipline the employer took or failed to take regarding another employee. This necessarily requires evaluation of the personnel files and confidential documents regarding other employees. Fourth, the defense can give rise to considerable delay, since to understand whether a prior case was "applicable," the parties will be required essentially to "try the case again."

For these reasons, it is important for the employer to be aware of its prior disciplinary practices and to assess, in each case, how the proposed discipline parallels prior disciplines for similar actions given similar work records. Indeed, many employers (especially police departments) maintain a chronological confidential log recording disciplinary actions by date and cataloguing the offense, penalty, the existence of prior offenses, and whether the case was settled or appealed.¹

CHECKLIST SEVEN: Disparate Treatment/Discrimination

When determining whether or not to discipline and what penalty to impose, these factors should be considered:

1. What are the specific offenses of which the employee is accused?

2. What is the employee’s record of prior discipline?

3. Over the past five years,²

a) What disciplinary action has the employer taken against other employees for the same offense?

b) When the employee is accused of more than one offense, what discipline has been taken in the past for the same combination of offenses?

4. In the event that the employer has a record of administering discipline for the same offense(s):

a) What level of discipline was involved?

b) What was the prior record of discipline for the employees involved?

5. In the event that there is not a record of administering discipline for the same offense(s), how does the cause for discipline and the intended penalty compare vis a vis other disciplinary actions of the employer?

Some public employers (especially employers with sizable work forces) have tried to address the perils of "disparate treatment" claims by having "disciplinary guidelines" defining the likely discipline for specified defenses, with further prescriptions for repeated offenses. Of course, implementing a new set of such disciplinary standards would present a bargainable issue, unless the union has waived its right to bargain (e.g., through management rights language in the collective bargaining agreement).

C.

Americans With Disabilities Act

The Americans with Disabilities Act (ADA) does not preclude an employer from taking appropriate disciplinary action. However, in moving to discipline an employee with a claimed (or perceived) disability, an employer should be wary of possible pitfalls. The Equal Employment Opportunity Commission (EEOC) has published guidelines on the evaluation, discipline and dismissal of disabled employees.³ Employers should become familiar with these guidelines.

CHECKLIST EIGHT: Americans With Disabilities Act

The following is a brief checklist to assist in anticipating and addressing ADA issues in the disciplinary context:

1. Does the employee have a covered "disability?"

a) Does the employee claim to have a covered "disability?"

b) Is the employee "perceived" to have a disability?

c) Is there reason to believe that the employee may have a covered "disability?"

2. Is the employee with a disability being held to the same performance standards as similarly situated employees without disabilities?

3. Is the reason for discipline caused by a disability for which the employer owes the employee a reasonable accommodation?

4. Is the reason for discipline the illegal use of drugs or alcohol use?

D.

Family And Medical Leave Act

In addition to considering the ADA when disciplining an employee, an employer must consider the impact of the Family and Medical Leave Act (FMLA). The FMLA requires covered employers to award unpaid leave up to 12 weeks each year for an employee (who has been employed for at least one year and has worked at least 1,250 hours during that year) for leave sought in association with the birth of a child, the placement of a child for adoption or foster care, or the "serious health condition" of the employee or the employee’s immediate family.

CHECKLIST NINE: Family And Medical Leave Act

The following is a brief checklist to assist in anticipating and addressing FMLA issues in the disciplinary context:

1. Does the FMLA cover the current situation?

a) Is the employee eligible?

b) Is the requested leave covered (leave for birth, adoption, foster care, placement or "serious health condition")?

2.Does covered leave play any role in the cause for discipline?

3. Will the discipline to be imposed interfere with the employee’s FMLA rights?

4. Can a claim that the proposed discipline is retaliation against the employee for taking FMLA be defeated by showing a legitimate business reason for the discipline?

V.

ABIDE BY PRE-DISCIPLINARY AND POST-DISCIPLINARY DUE PROCESS

"Due Process" is a truly important principle for public sector labor and personnel administration. Any employees possessing a property interest in their employment cannot be deprived of that interest without "due process" of law. Two dynamic aspects of constitutional law, however, show that many public employers have more control over the contours of their employees’ "due process" rights than they may have thought.

First, does the employee have a due process interest? Some employees, such as probationary employees and "at-will" employees, do not have a "property interest" in their jobs such that "due process" rights attach.

Second, what is the breadth of the employee's due process rights (i.e., the amount of "process" that is "due" to employees)? This is often determined locally by the employer’s own ordinances and policies, as well as through contractual provisions, whether in individual employment contracts or collective bargaining agreements.

How these intermeshing principles apply in practice has been the subject of ongoing litigation and discussion. Here are the most important areas in which the courts either have recently shaped the law or are poised to act:

A.

Pre-Termination Rights For Employees Having A "Property Interest" In Their Employment

Public employees with "property interests" in their employment have a due process right to receive notice about the basis of the employer’s contemplated action, a copy of the charges against them and materials upon which the determination was based, as well as the right to respond either orally or in writing to the authority initially imposing discipline.⁴ Even though these rules have been in effect for a long time, many public employers still need to update their policies, procedures and timelines for handling discipline cases. Their failure to do so needlessly exposes them to litigation. To ensure that an employee’s due process rights are met:

1. Conduct a fair and impartial investigation (see "Conducting Effective Internal Investigations" in these Symposium materials);

2. For all matters that could result in serious discipline, the employee should be placed on paid administrative leave pending investigation;

3. Review the entire personnel file as part of the investigation of the case;

4. Shape the pre-disciplinary document properly. The document should:

a) State all "causes" (contained in the employer’s rules and policies) on which the discharge is based;

b) State all facts germane to the decision to discipline;

c) Include reference to all other matters on which the decision relied (including any prior disciplines and/or evaluations); and

d) Attach all pertinent documents.

5. Treat the pre-disciplinary meeting as an extension of the investigation unless your policy or practice dictates otherwise.⁵

a) Tape record the meeting unless prohibited by law. (See, e.g., California Penal Code § 632(a).)

b) Have a management witness present; and

c) Keep an open mind. Fully and objectively inquire about the employee’s perspective on whether he committed the offense(s), his reasons, defenses and/or excuses, and the proposed discipline;

6. Beware of any limitations in your rules about:

a) Time limits for finalizing discipline;

b) Disciplinary actions not specifically allowed by your rules.

7. Carefully consider the most appropriate discipline:

a) Is it necessary to use progressive discipline given the offense?

b) Does the punishment fit the "crime?"

c) Have you considered all mitigating and aggravating factors?

d) Could temporary reductions in pay be used? Suspensions are "time off" and therefore reduce productive time, whereas temporary reductions in pay can serve the same disciplinary purpose without impairing productive time; and

e) What action has been taken for similar offenses in the past? Be mindful of your past practices when taking disciplinary action today.

B.

Pre-Termination Rights For Employees Not Having A "Property Interest" In Their Employment

Whether or not employees have due process rights to their job, they are still protected from invasion of their "liberty" interest, i.e., allegations that would have a tendency to stigmatize their reputation and impair their ability to take advantage of other employment opportunities in their fields.⁶ When the employer deprives an employee of that interest, the employee’s remedy is an opportunity to refute the charge and clear his name.⁷ This should occur before the termination becomes effective.⁸

The "ounce of prevention" in liberty cases is straightforward:

1. Do not state "cause" in disciplining or terminating at-will employees. At most, simply indicate that the employee is being released for failure to meet the standards of the position.

2. Maintain utmost confidentiality of your disciplinary processes, so that the basis of an action is not disclosed to the outside world.

3. Choose your words carefully in preparing final disciplinary documentation.

4. Do not answer reference inquiries (except to verify an employee’s name, job title and dates of employment), unless the employee has executed a complete "waiver and release" forfeiting his right to sue based on information you may disclose.

VI.

CONSTRUCTIVELY SETTLE DISCIPLINARY ACTIONS

The majority of disciplinary actions settle prior to final action or post-discipline appeal. When deciding whether or not to initiate settlement or to accept an offer to settle, three main issues are relevant. First, how strong, both substantively and procedurally, is the employer’s case? Second, what precedent, formally and informally, will be set by the proposed settlement? Third, does the proposed settlement foreclose all legal actions potentially arising from the underlying matters?

CHECKLIST TEN: To Settle Or Not

When deciding whether or not to settle a disciplinary matter, consider the following:

1. What is a realistic assessment of the likelihood of successfully imposing an acceptable disciplinary penalty? Consider:

a) Merits of procedural challenges?

b) Merits of substantive challenges?

c) The decision-maker: employer or third party?

2. If settlement is initiated by the employee, what is her motivation?

3. What settlements are acceptable from the perspective of:<

a) Standards of conduct in the workplace?

b) Support of supervisors and managers?<

4. Does the settlement:

a) Ensure that the conduct will not reoccur, or will not reoccur without serious ramifications?

b) Meet liability standards facing the employer for:

• Sexual harassment?
• Negligent retention?

5. If the settlement has potential negative "past practice" or precedent implications, will the settlement document be drafted so as to avoid this negative? (In this case, management action should be taken to address any underlying deficiencies in the disciplinary action so that they do not reoccur in the future.)

6. Does the settlement agreement get all of the necessary and available waivers and releases from the employee being disciplined?

VII.

SAMPLE POLICY ON AT-WILL EMPLOYMENT

To strengthen an employer’s legal position toward an "at-will" employee, the employer’s policy should be clear and concise. A sample policy is set forth below:

The classifications listed in paragraph 2 below are excluded from the agency’s civil service rules. Incumbents in these classification serve "at-will," i.e., at the pleasure of the appointing authority. The employment relationship between the agency and its at-will employees is at the mutual consent of both parties. Either the employee or the agency can terminate the employment relationship at-will, at any time, with or without cause or advance notice. The employer need not state reasons for release of such employees, and such employees have no right or expectation to receive any pre-release or post-release proceeding, hearing or appeal, nor are they eligible for severance pay. Employees in the classifications specified in paragraph 2 have no right to return to employment in a former position or right to employment in any other position within the agency.

At-will classifications are:

• [LIST]

This policy states the full and complete policy in respect to the at-will status, employment rights, retention rights, and severance rights of agency at-will personnel. No other statement, written or oral, can modify the terms of this policy, except for a later formal resolution by the Board of Directors enacted in open session. Apart from the Board of Directors, no one employed by the agency has the authority to modify the at-will status of any such employees.

VIII.

PRACTICAL CONSIDERATIONS REGARDING THE USE OF PERSONNEL FILES

Disputes often arise regarding the legal propriety of documentation used in a disciplinary action. The following principles are intended to help ensure that documentation is properly created and maintained in the event of disciplinary action.

1. All documentation on which the employer relies in taking disciplinary action must be placed in the employee’s official personnel file within a reasonable time after the event.

2. Copies of documentation placed in personnel files must be given to the employee, the employee must be informed of the fact that the document is being placed in the file, and the employee must be given an opportunity to respond to the entry.

3. Unless specifically prohibited by statute, case law or local ordinance, supervisors may keep temporary records relative to recent events in a "working file."

4. Supervisors should keep contemporaneous records of events so that they can refresh their memories in drafting evaluations, in meeting with employees about performance, and in monitoring employee work performance. These records can be as informal as notations in calendars (e.g., indicating the time of tardy arrivals) or they may be full notes describing events (such as poor performance or the content of statements by employees).

5. Any information in the working file that has continuing meaning and importance must find its way from the working file into the personnel file. This occurs either (a) through the periodic appraisal process, in which all information pertinent to an employee’s performance is merged into the appraisal instrument or (b) when a positive or negative record relative to performance warrants a formal personnel file entry.

6. Some agencies have rules or practices (in collective bargaining agreements or otherwise) that allow for purging of information from personnel files after a specified period of time. Because the personnel file is the permanent repository of information relative to performance, we recommend that such rules and practices be eliminated.

7. Do not forget to include positive information about performance in employee personnel files. Deserved positive feedback is a necessary tool for ensuring that the file is an accurate record of performance and for improving morale and motivation.

IX.

CONCLUSION

It is possible for employers to discipline employees without becoming a defendant. Granted, navigating through this process can at times be difficult. Ultimately, the key to success lies in the implementation of a strong personnel structure. Clearly defined work rules, employee performance standards, and disciplinary appeal procedures are essential to the process. The employer must always be mindful to comply with its own rules and regulations and with applicable state and federal statutes, including the ADA and FMLA. Finally, the importance of a well-trained supervisory and management team cannot be over-emphasized. With these elements in place, an employer's ability to effectively implement discipline will be greatly enhanced and the prospects of

Footnotes

1. Employers need to bear in mind that such logs will become known and will be subpoenaed in discipline cases.