Tuesday, June 25, 2013

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges
OATH Index No. 559/13

An OATH Administrative Law Judge found a housekeeping aide guilty of [1] laying down on a clean stretcher in a patient area to make a phone call during work hours and [2] failing to complete his assigned cleaning duties.

However ALJ Faye Lewis dismissed charges that Aide abandoned his post, was discourteous, and did not comply with a directive to clean certain areas in a medical unit.

Taking into consideration employee’s prior disciplinary record, which included 30-day suspensions, ALJ Lewis recommended a 45-day suspension.

The case usually cited as authority for considering the employee's personnel record in recommending a disciplinary penalty is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470. Further, the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty. 

However, in the event the employee's personnel records will be considered in determining the disciplinary penalty, he or she must be advised of that fact and given an opportunity to explain or rebut anything in that record.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-559.pdf

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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