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Mark
Makler,
Esquire on:
REPRESENTING EMPLOYEES IN THE DISCIPLINARY PROCESS
A. The Employee's Right to Representation -- The Weingarten Rule.
Employees are guaranteed the right to representation whenever an employee is being questioned under circumstances which may lead to discipline. These rights were first described by the United States Supreme Court and apply in a variety of settings. In each case, however, the employee is entitled to representation only if the employee requests representation. Absent a request from the employee, the employer has no obligation to notify the employee of the employee's right to request representation.
Because Weingarten rights turn on an employee's request for representation, Association Representatives should make sure that all employees with whom they work understand that they have the right to an Association Representative whenever they are being interrogated about a matter which they believe could result in discipline. At a minimum, Weingarten rights exist under the following circumstances:
(1) Any disciplinary interview concerning a citizen's complaint;
(2) Any disciplinary interview concerning a department-initiated complaint;
(3) Any situation where the employee is required to give an oral or written report about the use of force.
Remember, Weingarten rights only come into existence when the employee requests representation. Association employees have this right whether or not it is in your contract. This right should always be exercised, to ensure you are informed, and that both you and the employee are adequately prepared.
B. The Employee's Right not to Incriminate the Employee's Self -- Miranda Warnings.
All too frequently in the law enforcement business if an employee is being interviewed for conduct which could violate department rules and regulations, it is also possible that the conduct may violate State criminal statutes. For instance, if excess force was used, an employee may have committed an assault.
Therefore, if an employee is being interviewed about allegations of misconduct which, if true, could result in criminal charges, the employee should be instructed that the employee has the option to obtain an attorney to represent the employee relative to the potential of criminal charges. The Association's duty of fair representation is simply to defend the employee against discipline which may be without just cause. AssociationRepresentatives should not be giving the employee advice regarding the potential for criminal charges. That should be something the employee should determine for himself or herself with or without the employee's personal attorney.
However, an employee may be given immunity by the employer and ordered to answer questions where there are potentially criminal charges.
C. An Employee's Right to be Granted Immunity Before Answering Questions.--Garrity Rights.
The Supreme Court has held that if an employer orders an employee to answer a question, the employee's answer and the fruits of that answer cannot be used against the employee in a subsequent criminal proceeding. This rule, known as the Garrity rule, is named after the case in which the United States Supreme Court first enunciated the rule.
The impact of the Garrity rule is that whenever an employee is being asked a question about alleged misconduct, the Association Representative should ensure that the employee always solicits an order prior to voluntarily responding to the questions. A good rule of thumb is that when an employee is being interviewed in a disciplinary setting, the employee should be advised that the first words out of the employee's mouth should be: "Am I being ordered to answer this question?"
If the employee is informed that he or she is not being ordered to answer the question, then the employee should respectfully decline to proceed with the interview. If the employee is informed that he or she is being required to answer the question, then the employee should cooperate fully with the investigation (the employee could be charged with insubordination if he or she does not answer the questions), bearing in mind that the statements made cannot be used against the employee in a criminal setting.
Though it is rare to find a law enforcement officer charged with any criminal law violations, invoking an employee's Garrity rights should nonetheless be part and parcel of the Association Representative's role in the disciplinary process. The old bromide that "an ounce of prevention is worth a pound of cure" is rarely truer than with the invocation of Garrity rights. One area of law that is currently unsettled is whether the immunity that has been given by the Department is simply "use" immunity, which means the employee's statement cannot be used against the employee in criminal prosecution or is "transactional" immunity, which means that the employee cannot be prosecuted for the underlying offense. Should an issue arise where it appears clear that the employee may be facing criminal charges based upon the allegations of misconduct, Association Representatives should consult with the Association's attorney over this issue, and the employee may wish to consult with the employee's private criminal defense attorney.
D. How to Act While Representing Employees in a Disciplinary Interview.
When an employee is being interviewed in this setting, you should ask to tape record the interview. You have no right to tape record the hearing, and the employer may prohibit you from doing so. However, an employer does so at its peril as, if there is a swearing match later as to who said what during the interview, an arbitrator will hold it against the employer for refusing to permit a tape recorder.
In addition, Employment Relations Board decisions have drastically reduced the extent that Association Representatives can participate in disciplinary interviews. You do have the right to be present during any such interview. You do not have the right to consult with the employee during the interview or before the interview if the Employer prohibits it. However, you should request that right if you have not have not had time to prepare for the interview. All that you can do during the interview process is request "clarification" of questions when they are asked. Practically speaking, you should do so when it becomes clear that the employee is getting very flustered in the process, and you or the employee can still request a break to allow the employee to compose himself or go the rest room. During that time, hopefully, you will have a chance to calm the employee down.
It is critical that the employee be urged to be honest during the interview. All too often an employee is being interviewed about improper conduct, and the employee may be embarrassed or feel guilty about his or her actions.
In desperation the employee may tell stories which are not truthful or distort facts. If this is the case, defending the employee on subsequent discipline based on untruthfulness becomes extraordinarily difficult. The untruthfulness charge may indeed become more serious than the initial improper conduct. Therefore, the employee should be counseled that while we can help an employee keep his or her job in most cases where there are allegations of misconduct, but we cannot defend an employee who is not truthful.
If the Employer's representative begins to act inappropriately or ask trick questions, you should not hesitate to object to those questions and seek clarification to them. If an unprofessional or threatening manner is being taken, you should complain about this fact and ask for clarification as to how the interview is proceeding.
The following is a check list to be utilized by the Association representative at the start of the interview process:
1. If at all possible, tape record the disciplinary interview.
2. Ask the following questions before the interview begins (unless the employer has a standard format which obviates many of these questions. For instance, in some municipalities, the employee will usually be informed at the beginning at an IA that they are required to answer questions for the subject to discipline. Such a statement would eliminate the first three questions).
Questions to Ask:
A. Is the employee ordered to give a statement? (If the answer is no, leave).
B. If so, ask: Is the employee subject to discipline if the employee refuses to answer questions? (If the answer is no, leave).
C. What is the subject matter about which the employee is to be interviewed? (Get as much information as possible, names, dates, places and events. If the employer refuses to provide the information, object that the employer is violating ERB rules as established by case law, but continue the interview).
D. Is the employee going to be asked questions about any documents or matters that have been reduced to writing? (If yes, ask to review the documents prior to the interview. If no, object but continue).
E. Will we be allowed to take reasonable breaks and consult with the employee during the course of the interview? (If no, object but go through with the interview).
E. Representing Employees in a Pre-Disciplinary Hearing
Before an employer takes away the "property right" of an employee to an employee's job or to a full paycheck by way of a suspension or a termination, the employer must give the employee a pre-disciplinary or pre-termination hearing. This is called the "Loudermill" Rule, named after a decision of the United States Supreme Court. Under this rule, the employer must at a minimum follow certain guidelines for the hearing:
1) Provide the employee with specific notification of the charges against the employee;
2) Allow the employee to have a representative present, under the previously discussed Weingarten Rule; and
3) Allow the employee on an informal basis to respond to the charges against the employee.
The employer may prohibit the employee from calling witnesses, but the employee may indicate what witnesses would say.
The employer must give you enough information about the allegation, the investigation and findings, and the recommended discipline so that you can be prepared to respond. Otherwise, the right to a Loudermill hearing would be meaningless.
You may choose to waive your right to the Loudermill hearing. The employer often has his/her mind made up and it may be more advantageous to you to go straight to arbitration. This may be so because by this time, the employer may not listen to you or may use the hearing as "discovery" to get your detailed arguments and strategy for arbitrating the situation. In many cases it is better to send in a written statement that sets forth your position and not appear in person. Obviously, this is an important decision and you should consult the Association Attorney in each case.
F. Use of Force Investigations:
Being involved in a situation requiring the use of deadly force or taking the life of someone no matter how justified can be psychologically traumatic for any law enforcement officer. In addition, studies that have been conducted by psychologists have shown that how the officer is treated by the employer in the subsequent investigation can leave far more traumatic scars in the incident itself.
It is the expectation of the attorneys of the firm that represent you that they will be contacted and will respond to represent the officer as soon as possible after such an incident. The reason for the response is not because of concern for criminal charges or even discipline against the officer as on a nation-wide basis, well over 95% of all police shootings are clearly justified, but to help the officer survive the aftermath, i.e., the department's investigation.
When such a traumatic incident occurs, it is critical that the following happens.
1. Immediately go to the scene of the incident or wherever the officer has been taken to be with the officer.
2. Page the attorneys, and ascertain who will be responding for the firm and how long it will take them to get there.
3. Make contact with the attorney who will establish that you will be working for the attorney as the attorney's agent. This will allow the employee then to talk to you and have a confidential conversation while being covered by the attorney/ client privilege.
4. Separate the employee from command staff co-workers and anyone else, and inform the employee that you are holding the fort until the Association attorney arrives. Tell the employee that you are working as the agent of the attorney and the employee can have confidential communications with you. This is important as the employee needs to know that somebody is there for them. The employee needs to be able to unload their feelings and emotions surrounding the incident and have someone to talk to with assurances that the matters will be kept confidential. It will be not unusual for an employee to second guess themselves or to wonder why they had to shoot the person, even though the shooting was clearly justified from the standpoint of self-defense.
5. If the employer provides a psychologist or mental health worker for the employee to consult, establish if there is a Doctor/patient privilege with the employee. Is the psychologist there for the employer's benefit or for the employees' treatment? If the former, then the employee should give no statement to the psychologist. Then the most, the psychologist can just go over with the employee the psychological stages the employee may go through in the aftermath of such a traumatic incident. If the psychologist is there to provide treatment to the employee, then the two should be alone for a consultation to ensure that a Doctor/patient privilege exists. Do not be present during such a consultation nor allow anyone else to be present besides the employee.
G. Disciplinary/Just Cause Standards -- What to Look For.
When representing an employee in the disciplinary process, it is important to understand what it is arbitrators look for in a discipline case. In all discipline cases, arbitrators impose a burden upon the employer to prove that it had just cause to discipline an employee.
In a landmark discipline case, Arbitrator Carrell Daugherty enunciated seven factors which arbitrators later have come to accept as being important in all discipline cases. Association Representatives should carefully review the following seven questions in the course of investigating a disciplinary incident and representing an employee in the disciplinary process.
1. Did the Employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct?
2. Was the Employer's rule or managerial order reasonably related to the orderly, efficient, and safe operation of the Employer's business?
3. Did the Employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?
4. Was the Employer's investigation conducted fairly and objectively?
5. At the investigation did the `judge' obtain substantial evidence or proof that the employee was guilty as charged?
6. Has the Employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?
7. Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the Employer?"
The above seven questions are a good checklist to use in every discipline case. When investigating the case, Association Representatives should discuss each question with the employee in order to determine what possible defenses exist.