A LABOR RELATIONS TOOLKIT

Presented By:

David Cirillo, Esq. Director of Staff Relations, West Genesee CSD

Candice A. Dean, Paralegal Office of Labor Relations & Legal Services, Jefferson-Lewis BOCES

CONDUCTING AND DOCUMENTING PERSONNEL INVESTIGATIONS AND ADDRESSING EMPLOYEE MISCONDUCT

Introduction

Good record keeping can prevent a lot of headaches

down the road. Spending a little extra time and effort to

document poor performance and management’s response

to the problem can pay dividends later.

An employer’s well-documented record of an employee’s

substandard work can quell a bogus discrimination claim

filed by an employee hoping to avoid an adverse

employment action, in addition to the records serving as

evidence if a matter moves out of the realm of counseling

into the realm of discipline.

Notice of Expectations

When we know better, we do better (hopefully).

• Employee Handbook

• Training

• Mentoring

• Evaluations

• Providing copies of policies and practices.

Creating a Record

Establish knowledge of the rules or responsibilities

• A record could be as simple as a form signed showing the documents which were provided and a statement that they read and understood the documents, or a sign in sheet for the trainings the employee received, with the related training materials.

Employee Acknowledgment I, [employee name] acknowledge receipt of a copy of the [document received, i.e. handbook, policy, job description, etc.]. I understand and agree that it is my responsibility to read, understand, and abide by the polices, responsibilities, and/or rules contained therein. I acknowledge that if I have any questions or concerns related to my responsibilities contained within [document received, i.e. handbook, policy, job description, etc.] I am encouraged to speak with my supervisor or another member of the leadership team. __________________ ____________ Employee’s Signature Date

No One-Size Fits All

Statutory Due Process Requirements depending upon the type of employee, such as certified, classified, labor, non-competitive, etc.

Collective Bargaining Agreement Procedures and Restrictions

Board Policy and District Practices

Severity of the Issue

Employee’s History

Consistent, Thorough and Fair Practices

Civil Rights laws used to shield employees from unfair practices of employers can sometimes be transformed to a sword by an employee who wants to avoid an employer’s response to the employee’s performance and/or conduct.

Handle each matter professionally with a similar process for all employees to avoid malicious discrimination claims.

Treating employees less favorably based on a protected class such as age, religious views, race, sex, disability or national origin is disparate treatment, a form of discrimination under the law in the United States.

Civil Rights Law

Federal Anti-Discrimination Laws

Early Civil Rights laws (1861–1871)

Equal Pay Act (EPA) (1963)

Title VII (1964)

Executive Order No. 11246 (1965)

Age Discrimination in Employment Act (ADEA) (1967)

Title IX (1972)

Rehabilitation Act of 1973 (1973)

Pregnancy Discrimination Act (PDA) (1978)

Immigration Reform and Control Act of 1986 (IRCA)

Employee Polygraph Protection Act (PPA) (1988)

Older Workers Benefits Protection Act (OWBPA) (1990)

Americans with Disabilities Act (ADA) (1990)

Civil Rights Act of 1991 (CRA 91) (1991)

Family and Medical Leave Act (FMLA) (1993)

Uniformed Services Employment and Reemployment

Rights Act (USERRA) (1994)

Genetic Information Nondiscrimination Act (2008)

Federal Anti-Discrimination Laws prohibit discrimination that is based on any of the following: race, color,

religion, sex, national origin, age, disability, genetic predisposition, and military status. In addition, they

prohibit retaliation for complaints of discrimination. Several of these federal laws are codified in Title 42

U.S. Code Chapter 21.

Civil Rights Law

New York Anti-Discrimination Laws

The New York State Human Rights Law (N.Y. Lab. Law §§ 201-c, 201-d et seq.) provides the broadest

remedy for discrimination on the job. It follows Title VII in many respects. The New York State Human

Rights law has been expanded to provide that it is unlawful to discriminate against a contractor,

subcontractor, vendor consultant or other person in the work place based on a protected category (N.Y.

Executive Law §§ 296-d .

The New York State Constitution as well as local laws in New York are additional sources of anti-

discrimination protection.

Collective Bargaining Agreement Procedures and Restrictions

Beware of claims of retaliation for conducting legitimate union business. A counseling

memorandum must be motivated by legitimate reasons, otherwise a claim may be made the public

employer engaged in discriminatory treatment.

Violation of Labor Law subdivisions (a) and (c) of § 209-a.1 that the charging party must prove that:

The affected individual was engaged in protected activity

Such activity was known to the person(s) making the adverse employment decision

The action would not have been taken “but for” the protected activity

The existence of anti-union animus may be established by statements or by circumstantial

evidence, which may be rebutted by presentation of legitimate business reasons for the action

taken.

See, In the Matter of Greenburgh Uniformed Firefighters Association, Inc., Local 1586, and Hartsdale Fire District, 37 PERB ¶ 3030; International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America, AFL-CIO, Local Union 65 and Town of Independence 23 PERB ¶ 3020 (1990)

Investigation

The Investigator should be fully familiar with the district’s process and procedure to

address employee performance or conduct. established protocol for internal

investigations will ensure investigations are conducted on a uniform basis within the

district. Additionally, ensuring staff are properly trained to investigate personnel

matters, and to properly address the findings of the investigation will diminish the

likelihood of liability claims and grievances against the district. If there is an

expectation that the senior management is notified of counseling, verbal or written,

ensure those individuals that are in charge of the counseling know how and when to

communicate these issues through the chain of command.

Investigation

Roles in the Investigation

The type and/or severity of the issue may influence the appropriate person who should conduct the investigation. Districts should provide clear guidance and training to its supervisors so that they know how to recognize which incidents need senior administrative involvement, or when matters may be held at a department level. An example of divided responsibilities may be:

Failure to fulfill outlined job responsibilities or directives – department level counseling for first violation, human resource counseling for any additional like violations.

Leave violations – refer to human resource department.

Matters of the following nature must be immediately referred to the Assistant Superintendent for Personnel – harassment, discrimination, alcohol and illegal substance use, fraud, theft, or violence.

Investigation

Gather the Facts

Who, What, When, and Where are appropriate questions an investigator needs to keep

in mind when gathering facts relevant to the incident.

Who witnessed the conduct?

Who was involved?

Who must be notified?

What was observed, witnessed, documented, captured on video/photographs?

What has to be preserved?

What policies/procedures are applicable and therefore must be followed?

When did the incident occur, and how much time has passed?

Where did the incident take place?

Where is the target employee or witnesses now?

Investigation

Secure Data

If there is data which is pertinent to the investigation, notify the individuals who are

authorized and equipped to secure the data to preserve and secure the data.

Examples of data which may need to be secured are:

• A district computer, or other district property (vehicle, etc.).

• Surveillance cameras, and other digital data.

Documents, such as police or accident reports.

Photographs (i.e. damaged property).

Investigation

Witness Interviews

Speaking with witnesses in a timely manner, prior to the witness potentially forgetting

information, or the witness being influenced by others.

Speak with witnesses individually.

Document the date, time, and location of the interview.

Avoid leading questions.

Avoid sharing unnecessary information with the witness.

Ask them if they have relevant information prior to ending the interview.

Review your notes with them, either during or before ending the interview, to

ensure the accuracy of your notes.

Counseling

Counseling is not discipline, but rather it serves as a corrective admonition to the employee. The primary difference between counseling and discipline is that counseling attempts to correct performance issues through the use of face-to-face communication and problem solving, while discipline attempts to do so through the imposition of a penalty.

Counseling does not necessarily trigger:

The right to union representation; or

A right to a hearing pursuant to Civil Service or Education Law.

The supervisors and administrators charged with the responsibility of counseling should have a thorough knowledge of what circumstances trigger an employee’s right to union representation. Supervisors should consult the parties’ collective bargaining agreement and/or their personnel or employee relations office for agency guidance on this topic.

Counseling

Failure to Allow Union Representation May Constitute and Improper Practice

Civil Service Law § 209-a.1(g) states that it is an improper practice for a public employer or its agents to deliberately

“fail to permit or refuse to afford a public employee the right, upon the employee's demand, to representation by a representative of the employee organization, or the designee of such organization, which has been certified or recognized under this article when at the time of questioning by the employer of such employee it reasonably appears that he or she may be the subject of a potential disciplinary action. If representation is requested, and the employee is a potential target of disciplinary action at the time of questioning, a reasonable period of time shall be afforded to the employee to obtain such representation. It shall be an affirmative defense to any improper practice charge under paragraph (g) of this subdivision that the employee has the right, pursuant to statute, interest arbitration award, collectively negotiated agreement, policy or practice, to present to a hearing officer or arbitrator evidence of the employer's failure to provide representation and to obtain exclusion of the resulting evidence upon demonstration of such failure. Nothing in this section shall grant an employee any right to representation by the representative of an employee organization in any criminal investigation”

The party alleging a violation of Civil Service Law § 209-a.1(g) must prove, by a preponderance of evidence, that: a demand for representation was made by a public employee; the employer failed to permit or refused to afford the employee organizational representation during

questioning by the employer; and at the time of the employer's questioning it reasonably appeared that the employee may have been the

subject or target of potential disciplinary action.

Counseling

Example of a Notice of a Meeting for a non-certified employee. MEMO TO: FROM: DATE: SUBJECT: Meeting Notice I am directing you to meet with me in my office at XXXXXXX on XXXXXXX. The purpose of this meeting is to discuss an employment-related matter. Notice of Right to Union Representation. This interview could potentially lead to disciplinary action against you. Accordingly, I am providing you with this notice of your right to bring a union representative with you to the interview, if you want one. You also have the right not to have a union representative at the meeting. You must sign where indicated at the bottom of the page, if you do not wish to have any union representative present. I am directing you to acknowledge your receipt of this memo by calling XXX-XXX-XXXX to confirm your attendance with XXXXXXXXX. Please reply and acknowledge receipt no later than XXXX AM on XXXXXXXXXX. Additionally, sign below and bring this with you on XXXXXXX. Your signature serves as an acknowledgment that you have had the opportunity to review the memo, that you received a copy, and that you are aware that a copy will be placed in your file. Dated: _________________ Employee Signature: ______________________________________ __________________________________________________________________________________________________ OPTIONAL: I DO NOT WANT UNION REPRESENTATION AT THIS MEETING. Dated: _________________

Employee Signature: ______________________________________

Counseling

Example of a Notice of a Meeting for a certified employee. MEMO TO: FROM: DATE: SUBJECT: Meeting Notice I am directing you to meet with me in my office at XXXXXXX on XXXXXXX. The purpose of this meeting is to discuss an employment-related matter. Weingarten Rights - This meeting could potentially lead to disciplinary action against you. Accordingly, I am providing you with this notice of your right to bring a union representative with you to the meeting, if you want one. You also have the right not to have a union representative at the meeting. You must sign where indicated at the bottom of the page, if you do not wish to have any union representative present. Cadet Rights – Because you hold an educational certification, regardless of whether you choose to be represented by a union representative, you may invoke your Cadet Rights to refuse to respond to questions. However, you will still be asked questions and you are free to invoke your Cadet Rights to each and every specific question if you so choose. You are directed to sign below and bring this notice with you to the meeting. Your signature serves as an acknowledgment that you have had the opportunity to review the memo, that you received a copy, and that you are aware that a copy will be placed in your file. Dated: _________________ Employee Signature: ______________________________________ ________________________________________________________________________ OPTIONAL: I DO NOT WANT UNION REPRESENTATION AT THIS MEETING. Dated: _________________ Employee Signature: ______________________________________ Warning: Do not sign here unless you are waiving your right to union representation. cc: Personnel File

Counseling

Union Representation – Example of specific collective bargaining agreement language regarding when the right to union representation is triggered. In the Matter of NYS Correctional Officers and Police Benevolent Assoc., and State of New York (Dept. of Corrections), 48 PERB ¶ 4602

The 2009-2016 collectively negotiated agreement between NYSCOPBA and the State for the Security Services Unit includes an unnumbered provision entitled Bill of Rights. Paragraph (G) provides: ‘An employee shall be entitled to Union representation at an interrogation if it is contemplated that such employee will be served a notice of discipline pursuant to Article 8 of this agreement. Such employee shall not be required to sign any statement arising out of such interrogation.’ Paragraph (H) of the Bill of Rights provides: ‘Except as provided below, any statements or admissions made by an employee during such an interrogation without the opportunity to have Union representation may not be subsequently used in a disciplinary proceeding against that employee.’ Article 8.1 of the agreement, entitled Exclusive Procedure, provides: ‘Discipline shall be imposed upon employees otherwise subject to the provisions of Sections 75 and 76 of the Civil Service Law only pursuant to this Article, and the procedure and remedies herein provided shall apply in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law which shall not apply to employees.’

.

Counseling

Conducting the Counseling Session Counseling should not have a pre-determined outcome.

Counseling is not an opportunity to reprimand the employee or used as a means to threaten the employee with disciplinary action.

The purpose of this meeting is to present your concerns to the employee, and give the employee an opportunity to refute those concerns.

Counseling shouldn’t be avoided, even though it may be unpleasant to the administrator or supervisor. Confronting issues through counseling can be an effective means to correct performance issues. If accomplished effectively and early, at the onset of performance problems, it can resolve problems in a positive manner and ultimately help the employee more confidently fulfill their job responsibilities. Avoiding the issue in an effort to avoid confrontation can lead to frustration and a perception that people are not held accountable, creating friction in the workforce or leaving the employee with the performance issues the impression that the behavior is acceptable thereby encouraging the behavior to continue.

Counseling

Conducting the Counseling Session - guidelines which to minimize potential conflict.

Be prepared. Spend time reviewing the facts and defining your objective for the session.

You may find it useful to prepare a set of talking points in advance of the meeting to keep the meeting on track; addressing all the

issues which relate to your concerns.

Don’t schedule a counseling session during a time in which you are rushed. This may result in the employee feeling like the meeting is

perfunctory.

Counseling sessions should always be conducted in private. Airing the issues in a public setting will only result in humiliating the employee.

Control the Meeting Be candid with the employee about the purposes of the meeting.

Let them know that you are open to hearing their position, and working towards a potential resolution.

Some employees may be hostile, you must control your emotions and reactions. Rather than reacting to the employee's hostility, you

should redirect the employee's attention to the topic of conversation. If the employee continues to behave in a hostile or abusive

manner toward you, you should calmly advise the employee that such behavior may result in additional actions, up to and including

discipline.

Give the employee the opportunity to explain his or her version of the incident or circumstances. Even where the employee's

explanation is not satisfactory, the employee is more likely to accept your position if you have given them the opportunity to express

their position.

Counseling

After the Counseling Session

After listening to the employee's version of the incidents, a number of possible next

steps may be appropriate. The matter may require additional investigation, or

consideration on what the appropriate directives to the employee, or consideration

of employee assistance within or outside the organization.

Ultimately you want the employee to know that you are available to assist in solving

such issues before they become problems.

If you intend to memorialize the counseling session in writing, inform the employee

that you intend to write a counseling memorandum and notify them on a timeframe

of when they should expect a future meeting and/or written memorandum if you

know at the conclusion of the counseling session.

Counseling

Verbal Counseling

Depending upon the severity of the issue an investigation may not lead to formal

proceedings against the employee, or even a written counseling memorandum. The

administration may simply want to speak with the employee and provide them with a

verbal feedback and direction.

Consider memorializing the conversation with a simple email, which provides an

overview of the discussion. If future issues arise, this email can serve as a reminder to

the administrator of the previous issue and the direction which was provided. It can

also serve as part of the factual basis of the subsequent counseling.

Counseling

Written Counseling

The written counseling memorandum consists of four main sections:

1. Issue

2. Factual Investigation and Overview

3. Expectations, Rules, and/or Policy

4. Directive(s)

Counseling

Written Counseling

The Facts

Outline how you came to your conclusions which substantiates the necessity of the counseling memorandum.

This section outlines the investigation and the facts revealed in that investigation, including the conversations which occurred with the employee.

Be concise and clear. Include a statement of not only the reason for the counseling, but also the date, time, and place of the meeting. Be as complete as possible in describing the problem, and the employee's response to your concerns. This demonstrates to the employee that you were actually listening during the counseling session.

Factual background, such as prior counseling on similar issues, whether verbal or written, as well as any prior issues or concerns of a similar nature should be summarized in this section also. This section would summarize the prior verbal counseling we discussed in the earlier example that was memorialized by an email.

Counseling

Expectations, Rules, Policy The Facts

In this section an overview of prior directives, training, expectations, rules, and/or policy should be listed. For an example, if this employee received food nutrition training and requirements which outlined the food service regulations which the school must comply with, reference the training date, the subject of the training, and any materials that were provided in the prior training. Don’t overlook other expectations, such as the employee should complete all their responsibilities and conduct themselves in a conscious manner, avoiding workplace conduct which diminishes the communities’ confidence within the District. If the conduct violates a particular policy, such as the Code of Conduct, reference the section which has been violated, and provide the employee with a copy of the policy as an addendum to the counseling memorandum.

Counseling

Directives

The section includes directives for your future expectations; any plan for improvement that

was discussed during the session; and an invitation to the employee to contact you with any

future concerns so additional incidents can be avoided, and finally the admonishment that

future incidents may result in future counseling and/or discipline or that the counseling

memorandum does not rule out formal disciplinary action for this incident if appropriate. If

discipline is contemplated the employee should be afforded the opportunity of union

representation. Lastly, the employee should be directed to sign that they have received the

memorandum. That their signature does not constitute an admission of the contents of the

memorandum just that they received it. Many collective bargaining agreements provide that

an employee may submit a written response to a counseling memorandum. If the employee

chooses to file a response, such response must be placed in the personal history folder with

the original memo.

Discipline

The key difference between counseling and discipline is that discipline contemplates a punitive outcome. In a public school setting discipline is governed by the New York Education and Civil Service Laws, as well as the parties collective bargaining terms and conditions.

Civil Service Employees

Generally, disciplinary proceedings involving civil service employees are governed by the Civil Service Law §§ 75, 75-b, 76 and 77 and the collective bargaining agreements between the parties.

Certified Employees

A certified employee can be terminated during their probationary period, as a result of the Superintendent not recommending tenure, or a result of a disciplinary proceeding pursuant to Education Law §§3014(2), 3019-a, 3020, 3020-a, 3020-b, 3031 and Commissioner of Education Regulations, Title 8, Part 82.

Discipline

Before discipline is considered, the hope is that the district has developed a record.

This record could include:

Counseling Letters

Counseling Sessions with Employee

APPR Evaluations for Teachers and Principals

Performance Evaluations (non-APPR employees)

Attendance Records

Discipline

Civil Service Employees - Termination during probationary period.

Disciplinary proceedings involving civil service employees are governed by the Civil Service Law §§ 75, 75-b, 76 and 77 and the collective bargaining agreements between the parties.

Employees that are in their probationary period or are not covered by the protections of Civil Service Law §75 may be terminated after they have completed the minimum probationary term.

Just cause language in the parties collective bargaining agreement may afford an employee additional rights not contemplated by Civil Service Law §75.

[DATE] [EMPLOYEE NAME] [EMPLOYEE ADDRESS] Re: Discontinuation of Probationary Appointment

Dear [EMPLOYEE NAME]

Please be advised that I will be recommending to the Board of

Education at its meeting to be held on [DATE OF BOE MEETING], to

discontinue your current probationary appointment effective

[EFFECTIVE DATE] based upon the fact that your conduct and/or

performances has been unsatisfactory. Your initial appointment on

[APPOINTMENT DATE] was for an 8-52 week probationary period.

If you have any questions regarding the above, please feel free to

call upon me. I wish the best in your future endeavors.

Sincerely,

________________________ Superintendent cc: Clerk, Board of Education

Personnel File

Discipline

Civil Service Employees - Termination during probationary period.

Just cause language in the parties collective bargaining agreement may afford an employee additional rights not contemplated by Civil Service Law §75. In the Matter of New York State Correctional Officers and Police Benevolent Association, Inc., Charging Party, and State of New York (department of Corrections and Community Supervision), Respondent., 48 PERB ¶ 4602

“The 2009-2016 collectively negotiated agreement between NYSCOPBA and the State for the Security Services Unit includes an unnumbered provision entitled “Bill of Rights.” Paragraph (G) provides: ‘An employee shall be entitled to Union representation at an interrogation if it is contemplated that such employee will be served a notice of discipline pursuant to Article 8 of this agreement. Such employee shall not be required to sign any statement arising out of such interrogation.’ Paragraph (H) of the Bill of Rights provides: ‘Except as provided below, any statements or admissions made by an employee during such an interrogation without the opportunity to have Union representation may not be subsequently used in a disciplinary proceeding against that employee.’ Article 8.1 of the agreement, entitled “Exclusive Procedure,” provides: ‘Discipline shall be imposed upon employees otherwise subject to the provisions of Sections 75 and 76 of the Civil Service Law only pursuant to this Article, and the procedure and remedies herein provided shall apply in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law which shall not apply to employees.’”

Section 75 of the Civil Service Law (CSL) gives certain employees the right not to be removed or otherwise disciplined unless afforded a hearing on stated charges, at which hearing the employer must prove that the employee is incompetent or has committed some act of misconduct. The employees who receive this protection include “[a] person holding a position by permanent appointment in the competitive class of the classified civil service . . . .”48 An appointment becomes permanent upon the successful completion of a probationary period, whether by retention of the employee beyond the maximum probationary period or by notice following the successful completion of the minimum probationary period.

Discipline

Civil Service Employees - Termination during prior to minimum probationary period.

Disciplinary proceedings involving civil service employees are governed by the Civil Service Law §§ 75, 75-b, 76 and 77 and the collective bargaining agreements between the parties.

Employees that are in their probationary period or are not covered by the protections of Civil Service Law §75 may be terminated after they have completed the minimum probationary term.

Just cause language in the parties collective bargaining agreement may afford an employee additional rights not contemplated by Civil Service Law §75.

[DATE] [EMPLOYEE NAME] [EMPLOYEE ADDRESS] Re: Discontinuation of Probationary Appointment

Dear [EMPLOYEE NAME]

Please be advised that I will be recommending to the Board of

Education at its meeting to be held on [DATE OF BOE MEETING], to

discontinue your current probationary appointment effective

[EFFECTIVE DATE] based upon the fact that your conduct and/or

performances has been unsatisfactory. Your initial appointment on

[APPOINTMENT DATE] was for an 8-52 week probationary period.

If you have any questions regarding the above, please feel free to

call upon me. I wish the best in your future endeavors.

Sincerely,

________________________ Superintendent cc: Clerk, Board of Education

Personnel File

Discipline

Civil Service Employees

Generally, disciplinary proceedings involving civil service employees are governed by the Civil Service Law §§ 75, 75-b, 76 and 77 and the collective bargaining agreements between the parties. Employees that are in their probationary period or are not covered by the protections of Civil Service Law §75 may be terminated after they have completed the minimum probationary term. Just cause language in the parties collective bargaining agreement may afford an employee additional rights not contemplated by Civil Service Law §75.

Discipline

Civil Service Termination

Civil Service Law §75 provides that an employee may not be removed or otherwise subjected to disciplinary penalty except for incompetency or misconduct after a hearing. This statute authorizes removal or other disciplinary penalties only for “incompetency or misconduct.” There is no comprehensive list of acts and omissions which constitute “incompetency or misconduct.” The burden of proving the facts upon which the charges are based and the

Discipline

• Appeal

QUESTIONS?