Employee discipline guidelines for public employers

Employee discipline guidelines for public employers

Source: posted by the Editorial Team of the NYMuniBlog

   

Harris Beach partner Edward A. Trevvett, Esq., recently presented a talk focusing on Employee Discipline – Process, Procedure & Off-Duty Misconduct to municipal officials at a New York Conference of Mayors (NYCOM) Personnel School held in Pittsford, New York.

The presentation discussed “just cause” standards, sound personnel practices, the importance of documentation, “notice documents,” performance appraisals, progressive disciplinary policy, investigations and off-duty misconduct, as well as due process and procedural requirements for public employers.

To view the material presented by Mr. Trevvett at the Personnel School, click on the link set out below:

View this document on Scribd

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Available from the Public Employment Law Press

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/ 

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

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Complying with probationary evaluation procedures set out in the collective bargaining agreement

Complying with probationary evaluation procedures set out in the collective bargaining agreement
2014 NY Slip Op 01236, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) containing a broad arbitration clause and a grievance procedure providing that any unresolved grievance is subject to arbitration.

After a probationer received a series of negative evaluations, probationer's administrators recommended that the probationer be denied tenure. The union filed a grievance on the probationer's behalf challenging, among other things, whether the employer had complied with the probationary evaluation procedures provided for in the CBA.

The employer denied the grievance and terminated the probationer's employment. The union filed a demand for arbitration. In response, the employer initiated an action in Supreme Court seeking a stay of arbitration pursuant to CPLR §7503(b).

Supreme Court granted the employer's petition, concluding that the subject matter of the grievance was not arbitrable because it actually challenged the employer’s tenure decision — over which the parties agree that employer had sole discretion — and not the alleged failure to comply with the agreed-upon evaluation procedures.*

This, said the Appellate Division, was incorrect and the employer’s petition should have been denied.

The Appellate Division explained that the court's role in determining applications to stay arbitration is limited and, as relevant in this action, requires a determination of whether the parties have agreed to arbitrate the dispute at issue.

As the union asserted a violation of the evaluation procedures agreed to by the parties and included as part of the CBA, the Appellate Division concluded that there was a rational relationship between the subject of the grievance and the CBA. Thus, said the court, “The question of whether the employer violated these procedures "goes to the merits of the grievance, not to its arbitrability."  

In the words of the Appellate Division, "[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

* In Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that "contractual provisions between a teachers association and a school district can provide procedural safeguards concerning the tenure decision without offending public policy [see, also, Matter of Clarkstown Central School District, 163 AD2d 670].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01236.htm

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An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation

An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation
2014 NY Slip Op 01805, Appellate Division, Third Department

A civilian employee, [Claimant] working at a state correctional facility was dismissed from his employment after he was arrested for attempting to smuggle contraband, hidden in his lunch pail, into the facility.

The Unemployment Insurance Appeal Board found, among other things, Claimant “engaged in disqualifying misconduct and made willful false statements to obtain benefits” and reduced his right to receive future benefits and assessed a recoverable overpayment of benefits.

The Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s decision, explaining that "A 'willful' false statement or misrepresentation is one which was made knowingly, intentionally or deliberately, and criminal intent . . . need not be shown."

As to whether a willful false statement was made is a question of fact for the Board to resolve. The record showed that when Claimant was arrested, he told the police that he knew that items found in his lunch pail were considered contraband and he was aware of the employer's policy prohibited bringing contraband into the facility.

In contrast, Claimant told the Department of Labor's representative when questioned about his loss of employment that he was unaware of any wrongdoing on his part and had done nothing wrong.

Such inconsistent statements, said the Appellate Division, provide substantial evidence to support the Board's finding that claimant made willful false statements in an effort to obtain unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01805.htm
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