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Discipline and Workplace Rights*
Discipline and Appeals
Prior to discipline being imposed an investigation will be conducted to determine if there is just cause. Depending on what violation is being alleged, resulting discipline could be informal or formal. The investigation might involved interviews of witnesses, and should include an interview of the “subject,” i.e., the employee suspected of the wrongdoing. Below are summaries of the types of discipline and the process to expect if being investigated, as well as the process to appeal an adverse decision of management.
Employees who are involved in an administrative investigation are required to answer questions relative to events pertaining to workplace misconduct. Failing to cooperate in an investigation can be considered insubordination and lead to additional discipline, up to and including dismissal.
Types of Discipline
There are two levels of discipline: informal and formal. Informal discipline includes: counseling, documented oral counseling (DOC), and written reprimand (also known as a letter of reprimand or LOR). Formal discipline includes a salary step reduction, suspension, demotion, and dismissal. For non-sworn employees in the Police Department, who are governed by the Police Duty Manual, and LOR is treated as formal discipline with the corresponding rights of appeal. Remember, discipline should be progressive, corrective, and for just cause.
Informal discipline cannot be appealed (with the exception of LORs for non-sworn Police Department personnel). Formal discipline can be appealed. Permanent classified employees who receive formal discipline have specific “due process” rights, including the right to a Skelly hearing and the right to appeal to the Civil Service Commission. Due process does not apply to probationary, temporary, or unclassified employees. Rejecting an employee during probation (“probationary release”) is NOT discipline, and there is no appeal. (In certain cases, the extension of probation is something that might be considered prior to releasing an employee, and should be considered an option if the employee is facing discipline).
Initiating Formal Discipline
A supervisor or manager may initiate a recommendation for formal disciplinary action. This should happen after a investigation has taken place – by this time the employee should have already been interviewed by a supervisor. The investigation is a part of the discipline packet forwarded to the Office of Employee Relations (OER) for review. Once approved, the Department director will sign the Notice of Intended Discipline (NOID). The employee must then be served in person with the NOID and all referenced documentation. After receiving the NOID, the employee should request a Skelly hearing within five days of being served the NOID. (This doesn’t necessarily mean the Skelly hearing must occur within five days, but a request for one must be made.) Should the Skelly result in formal discipline being imposed, OER will finalize the Notice of Discipline (NOD) and forward it to the Department to be served to the employee.
Types of Formal Discipline
Salary Step Reduction
Interrogation Techniques Used by Supervisors
First it is important to remember that an employee who is being interrogated by a supervisor, when they reasonably believe the results of the meeting could lead to discipline, should invoke their Weingarten rights and speak to a Union representative BEFORE the interrogation begins.
At these investigatory meetings experienced supervisors will be prepared to interrogate employees with the specific intent of seeking incriminating information from the worker. Employees and stewards need to be prepared, also. Supervisors may often begin by asking ostensibly innocuous and overly broad questions, such as, “What happened last week?” This is an attempt to get the employee to unknowingly volunteer incriminating information. Remember, you MUST BE honest during an investigation, but if the question is too vague, this is when your Union steward can ask for clarification so you don’t provide an inaccurate (and unnecessarily incriminating) answer. At times it may even be appropriate for the steward to ask a leading question when seeking clarification. Also expect the supervisor to ask open-ended questions, that is, a question that doesn’t have a simple yes or no answer. Employees should be prepared to respond truthfully, yet carefully, to these type of questions. Another technique used by supervisors to confuse workers is to ask the same questions several times, at different points during their interrogation, but phrasing it differently each time. This is an attempt by the supervisor to solicit inconsistent responses, hoping that the employee contradicts him or herself under the pressure of answering multiple questions. When being interrogated by a supervisor, employees who don’t understand a question should ask for clarification or for time to speak privately with your union representative. Take it slow, be accurate with your response, and most importantly be honest.
Remember, too, that the standard of proof a supervisor must have to discipline an employee has a relatively low threshold. The supporting documentation used to discipline a worker must show that it is more likely than not that the employee engaged in misconduct. This is known as the “preponderance of evidence” or the “more likely than not” standard. Supervisors are not held to the “beyond a reasonable doubt” standard that applies in criminal prosecutions.
• After all the interviews have been conducted, the supervisor or manager conducting the investigation will prepare a summary of the interviews and an analysis of the facts they have discovered through the investigation.
• This is followed by the supervisor’s “findings” (i.e., the final decision regarding the issue that prompted the investigation, and the facts that led to that decision) and a “recommendations” (i.e., a recommendation to pursue discipline, or not). You may have one additional interview (take your union representative) to add any final comments about the charges against you or the investigation.
• Once approved by OER the employee will be served a NOID to put them on notice of the pending disciplinary action.
• A NOID:
o must include a statement in ordinary, concise language of the acts or omissions upon which the causes are based;
o must include a list of all the violations being charged, including,
+ a clear, concise, and verifiable statement of what happened,
+ if multiple charges, numbered and listed separately;
o must include a statement advising the employee of his/her right to respond to the NOID;
o must include a statement that the employee has five calendar days to request a Skelly hearing
o must be personally served upon the employee
• After the NOID is issued, it is the employee’s option to appeal to a Skelly hearing. See What’s a Skelly hearing? for more details.
• A Notice of Discipline (NOD) is issued after a decision is made after what the final type of discipline being imposed will be.
A settlement Agreement is a formal contract between the employee and the City describing a resolution reached between both parties regarding the pending discipline. It provides an opportunity for workers to correct their behavior. Each Settlement Agreement is unique in its terms and conditions and must be accepted by both the City and employee. When a Settlement Agreement is entered into, the City usually agrees to hold off the level of discipline stated in the NOID in abeyance for a certain period of time or reduce the level of discipline in exchange for the employee’s promise not to engage in similar activities during the life of the Settlement Agreement.
Civil Service Commission Appeal
No later than twenty (20) days after service of the Notice of Discipline (NOD), the employee may file with the Commission a written answer to the NOD appealing their salary step reduction, suspension, demotion, or dismissal. A request for appeal does not stop the discipline from being implemented. The discipline is implemented and then the appeal occurs.
The employee may allege a variety of things to the Civil Service Commission including the following:
• The discipline was not for cause
• The documentation is not adequate or complete enough to substantiate the charges
• The amount or type of discipline is inappropriate to the charge
• Within forty-five (45) days of the employee filing an answer to the NOD, unless extended, the Commission shall hold a hearing. The hearing will allow:
o Oral evidence
o Each party the right to call witnesses, introduce exhibits, cross examine opposing witnesses, impeach witnesses, examine respondent
o Relaxed rules of evidence (most relevant evidence shall be admitted)
Witnesses will be subject to direct and cross-examination and, the employee’s immediate supervisor and the person who conducted the investigation will usually be the City’s main witnesses.
Results of an appeal:
• The Commission can deny the appeal or grant the employee a specific remedy.
• The Commission can affirm or reject any of the charges, and based on this action can uphold or reduce the discipline. For example, if they do not feel that the City adequately documented one of the charges, they could order a dismissal be reduced to a suspension.
• The Commission can also overturn (revoke) the discipline.
• The Commission does not have the authority to increase discipline beyond what the City proposed.
See What’s a Skelly hearing? for more information on what to present during the appeal process.