New York Public Personnel Law: Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"

September 26, 2011

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"
Matter of Harper v New York State Off. of Mental Health, 12 Misc 3d 1197(A)

An employee received a “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.. The counseling memorandum, in part, issued by the New York State Office of Mental Health stated:

“This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future."

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to Harper did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA].

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA. Accordingly, Harper was entitled to administrative due process in the form of a notice of discipline and a hearing.

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