Transcript JUST CAUSE AND PROGRESSIVE DISCIPLINE

JUST CAUSE AND
PROGRESSIVE
DISCIPLINE
A Framework for Evaluation
William A. Earnhart, Esq.
April 4, 2012
JUST CAUSE preliminary issues
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NOT directly applicable in “at will” environment
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“For cause” employment contract
Arbitration agreement- contract
McDonnell Douglas burden shifting
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Qualifications are not “discipline”
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Certifications and licenses
Performance?
Last chance agreements
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Help evaluate/persuade
Contract, not “just cause”
Statutory remedies
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May be waived/ May not be waived
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Public Employees
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Property right in continued employment/wages
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Laudermill
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CLEVELAND BOARD OF EDUCATION v. LOUDERMILL,
470 U.S. 532 (1985).
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Specific notice of the charges against the employee
Explanation of the employer’s evidence
An opportunity to respond to the charges
Peace Officers
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Garrity
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Garrity v. New Jersey, 385 U.S. 493 ( 1967)
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Union Members
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Weingarten
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NLRB v. Weingarten Inc. 420 U.S. 251 (1975)
Right to have Union representative present when
discipline is likely outcome
 Employee must invoke right
 Employee may refuse to answer until representative
is present
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Burden of Proof
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Employer has burden in discipline case
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Preponderance of evidence, Romulus v. ASD, 910 P2d 610
(AK 1996)
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Conduct occurred
Business need/notice of rule
Appropriateness of penalty
“for cause” in “employment contract”
Clear and Convincing; criminal conduct/ moral turpitude
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Organized workplace
Generally termination
Public Policy State v. PSEA (2011)
 257 P.3d 151, 191 L.R.R.M. (BNA) 2686, 161 Lab.Cas. P 61,171
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WHAT IS JUST CAUSE?
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If not otherwise defined by contract or code:
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Jurgens v. City of North Pole, 153 P.3d 321 (Alaska
2007): discharge for “just cause” is one which is not
for any arbitrary, capricious, or illegal reason and
which is one based on facts (1) supported by
substantial evidence and (2) reasonably believed by
the employer to be true.
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Organized Workplace
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Collective Bargaining Agreement
Generally accepted standards for arbitration
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Progressive discipline
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Appropriate punishment
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Oral
Written
Suspension
 How long
Termination
Prior record
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Seven Tests
1. Forewarning
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Balance right of employer to impose workplace
rules with Employees’ right to know expectations
Progressive discipline?
Sign offs
Counseling
History
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2. Rule reasonably related
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Nexus
Conduct outside of workplace
Grooming/attire
Police and Fire, code of conduct
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3. Investigation required
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Full
Situation specific
Meaningful opportunity to respond
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4. Fair investigation
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Objective
Conflict of interest
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5. Substantial evidence
Reasonable Mind
Reasonably believed to be true
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6. Evenhandedness
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Fairness, equality
Situation specific
Potential issues
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Union activity
Race/religion/gender/etc.
Free speech- limited
Reasonable expectation of privacy- NOT
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6(a) Other Factors
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History with organization
Specific needs/skills
DISCIPLINARY HISTORY
Organizational change
Reasonable suspicion is a legal standard that is less than
probable cause, but more than an "inchoate and
unparticularized suspicion or 'hunch' ", it must be based on
"specific and articulable facts", "taken together with rational
inferences from those facts". Reasonable suspicion is
evaluated using the "reasonable person" standard; it depends
upon the totality of circumstances, and can result from a
combination of particular facts, even if each is individually
innocuous.
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7.
Reasonable Penalty
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Purpose is to obtain compliance, NOT to be punitive
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Discharge not “corrective” in nature
Progressive discipline
Seriousness of offence
Record of service
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Personnel actions
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CBA
Affirmative defense?
Length of service
Gross misconduct
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Five Elements, Elkouri
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1. Notice of the accusations
2. Meaningful opportunity to respond prior to
discipline
Prejudice to employee?
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3. Fair investigation
4. Timely action by employer
5. No double jeopardy
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Abrams and Nolan
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Failed to provide satisfactory work
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Discipline must further a legitimate interest of
management
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Safety
Production
Workplace harmony
Work rules
Seven tests 1, 2 & 7
Fairness
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Seven tests 3, 4, 5, & 6
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