League of Municipalities Disciplinary Actions in the Public Sector Wednesday, March 20, 2013 Presented By Genova Burns Giantomasi Webster LLC Joseph M. Hannon, Esq. Brett M. Pugach, Esq. Employee Discipline in Civil Service Jurisdictions Overview of Employee Discipline in Civil Service Jurisdictions Major Discipline Minor Discipline Appeal Procedure Major Discipline Causes Hearings Appeals Major Discipline (Continued) Includes (N.J.A.C. 4A:2-2.2) Removal Disciplinary demotion Suspension of five days or more Fine of five days or more Major Discipline (Continued) Causes (N.J.A.C. 4A:2-2.3) Incompetency, inefficiency or failure to perform duties Insubordination Inability to perform duties Chronic or excessive absenteeism or lateness Conviction of a crime Conduct unbecoming a public employee Neglect of duty Major Discipline (Continued) Causes (N.J.A.C. 4A:2-2.3) Misuses of public property, including motor vehicles Discrimination affecting equal employment opportunity Violation of certain drug and alcohol regulations Violation of New Jersey residency requirements as set forth in P.L. 2011, c.70 Other sufficient cause Major Discipline (Continued) Limitations on Suspensions or Fines (N.J.A.C. 4A:2-2.4) Suspensions or fines cannot exceed 6 months, unless the suspension is pending a criminal complaint or indictment In local service, a suspension can be with or without pay Appointing authority can only issue a fine for 3 reasons: As a form of restitution In lieu of suspension where suspension would be detrimental to health, safety, or welfare of the public Where an employee agrees Major Discipline (Continued) Limitations on Suspensions or Fines (N.J.A.C. 4A:2-2.4) Fines can be paid in installments on a percentage of gross salary based on the amount of the fine Appointing authority and employee’s majority representative can agree to a suspension on the record where it has the same effect for future progressive discipline as if it was actually served Major Discipline (Continued) Opportunity for Hearing before Appointing Authority (N.J.A.C. 4A:2-2.5) Employee must receive a PNDA and given an opportunity for hearing prior to receiving any major discipline Except: Can be suspended immediately if unfit for duty, would be a hazard, or would be detrimental to the public Must then serve PNDA within 5 days after suspension Employee is charged with 1st, 2nd, or 3rd degree crimes or 4th degree crimes on or directly related to the job Must be given the reasons and a chance to respond before a representative of the appointing authority Major Discipline (Continued) Opportunity for Hearing before Appointing Authority (N.J.A.C. 4A:2-2.5) Employees can request a departmental hearing within 5 day of receiving the charges If not, charges are deemed waived and an FNDA can be issued Departmental hearing must take place within 30 days of the PNDA unless waived Major Discipline (Continued) Hearings before the Appointing Authority (N.J.A.C. 4A:2-2.6) Can be represented by attorney or union representative Opportunity to review evidence and charges Opportunity to present and examine witnesses Employee not required to testify Appointing authority must make a decision within 20 days of the hearing Appointing authority must serve an FNDA on employee Major Discipline (Continued) Actions Involving Criminal Matters (N.J.A.C. 4A:2-2.7) If an employee is suspended based on pending criminal complaint/indictment, employee must be served with PNDA (must say N.J.S.A. 2C:51-2 may apply) N.J.S.A. 2C:51-2 deals with forfeiture of position based on conviction of certain crimes Employee can request departmental hearing within 5 days of receipt of notice Major Discipline (Continued) Actions Involving Criminal Matters (N.J.A.C. 4A:2-2.7) Hearing limited to issue of whether public interest served by suspension until disposition of criminal complaint/indictment Unfit for duty, hazard to others, or necessary to maintain safety, health, order Can impose indefinite suspension beyond six months, but not beyond disposition of criminal complaint/indictment (must issue FNDA saying so) Major Discipline (Continued) Actions Involving Criminal Matters (N.J.A.C. 4A:2-2.7) If court orders forfeiture, appointing authority must notify employee in writing and record it in employee’s personnel file and forward notification to DOP If court does not order forfeiture, appointing authority should issue a second PNDA specifying remaining charges upon final disposition of criminal complaint/indictment and proceed with hearing If employee pleads/convicted of a crime which is cause for forfeiture but court does not enter such order, appointing authority can seek forfeiture though application to the court for such an order Major Discipline (Continued) Appeals to Civil Service Commission (N.J.A.C. 4A:2-2.8) Appeal must be filed within 20 days of receipt of FNDA by employee Receipt by attorney or union representative does not affect appeal period Major Discipline (Continued) Commission Hearings (N.J.A.C. 4A:2-2.9) Commission can refer major discipline hearings to OAL and certain minor discipline as well Can determine if an order of forfeiture was actually entered Commission can independently determine whether someone should be discharged from State or local government based on prior conviction involving or touching on a previously held public office Major Discipline (Continued) Commission Hearings (N.J.A.C. 4A:2-2.9) Commission can adopt, reject, or modify recommended decision of an ALJ Commission can reverse or modify appointing authority But removal cannot be substituted for a lesser penalty Major Discipline (Continued) Back Pay, Benefits, and Seniority (N.J.A.C. 4A:2-2.10) If disciplinary penalty is reversed, Commission awards back bay, benefits, seniority or restitution of a fine (same if penalty is modified) If suspended based on pending criminal charges (municipal officer) Can receive back pay, benefits, and seniority in accordance with N.J.S.A. 40A:14-149.1 et seq. (based on outcome of charges) Major Discipline (Continued) Back Pay, Benefits, and Seniority (N.J.A.C. 4A:2-2.10) If suspended based on pending criminal charges (other employees) Back pay, benefits, and seniority if found not guilty, complaint/indictment dismissed, or prosecution is terminated Various factors are considered with respect to when back pay applies and when it can be reduced Major Discipline (Continued) Interest (N.J.A.C. 4A:2-2.11) Back pay awarded can be awarded with interest when: Appointing authority unreasonably delayed compliance with Commissioner/Board’s order Board finds sufficient cause based on particular case Major Discipline (Continued) Counsel Fees (N.J.A.C. 4A:2-2.12) Allows for counsel fees including prior proceedings where employee prevails on all or substantially all of the primary issues Gives set ranges for associates and partners per hour Fee amounts can be adjusted based on particular circumstances Fees from departmental level not reaching CSC on appeal or for appellate court review are not awarded by the Commission Major Discipline (Continued) Counsel Fees (N.J.A.C. 4A:2-2.12) Reasonable out-of-pocket costs are awarded Parties are to resolve by themselves when fees are awarded, but can be reviewed by the Commission at the request of either party Minor Discipline General Provisions: (N.J.A.C. 4A:2-3.1) Minor discipline includes Formal written reprimand Suspension of 5 working days or less Fine equivalent to 5 working days or less Causes for minor discipline are the same as for major discipline These rule do not apply to local service, where appointing authority establishes its own procedures for minor discipline and grievances CSC Appeal Procedure Opportunity for Hearing Right to Appeal Appeal Procedure Use Immunity Representation Penalties Limitations on Fines and Suspensions CSC Appeal Procedure (Continued) Opportunity for Appointing Authority Hearing (N.J.S.A. 11A:2-13) Opportunity for hearing within 30 days of PNDA unless waived Can immediately suspend employee without hearing if: Employee is unfit for duty or is a hazard to any person if allowed to remain on job Necessary to maintain safety, health, order or effective direction of public services Based on formal charge of a crime of 1st, 2nd, or 3rd degree, or crime of 4th degree if committed on the job or directly related to job CSC Appeal Procedure (Continued) Right to Appeal (N.J.S.A. 11A:2-14) Appointing authority must make decision within 20 days and provide notice If major discipline issued, employee can appeal to CSC Can appeal minor discipline if employee’s aggregate number of days suspended/fined in any one calendar year is 15 days or more If employee receives more than 3 suspensions or fines of 5 days or less in a calendar year, the last suspension or fine is appealable CSC Appeal Procedure (Continued) Appeal Procedure (N.J.S.A. 11A:2-15) Appeal must be in writing to CSC within 20 days from receipt of FNDA If appointing authority does not provide a written determination, an appeal can be made directly to CSC within a reasonable time CSC Appeal Procedure (Continued) Appeal Procedure of Suspension or Fine of Five Days or Less (N.J.S.A. 11A:2-16) If employee of a political subdivision receives a suspension or fine of 5 days or less, employee can request review under procedures established by the political subdivision or appeal pursuant to an alternate appeal procedure if provided in a collective negotiations agreement CSC Appeal Procedure (Continued) Use Immunity (N.J.S.A. 11A:2-17) Cannot be excused from testifying on ground that it could incriminate them But, answer cannot be used against him in any proceeding (except perjury) Use immunity cannot be granted without written approval from AG CSC Appeal Procedure (Continued) Representation (N.J.S.A. 11A:2-18) Employee can be represented at any hearing by appointing authority or CSC by an attorney or union representative CSC Appeal Procedure (Continued) Authority to Increase or Decrease Penalty (N.J.S.A. 11A:2-19) CSC can increase or decrease penalty imposed by appointing authority Removal cannot be substituted for a lesser penalty CSC Appeal Procedure (Continued) Fines as Disciplinary Penalty (N.J.S.A. 11A:2-20) Fine cannot be imposed as penalty unless: Agreed to by employee In lieu of suspension where suspension would be a detriment to public health, safety, or welfare As a form of restitution Fine can either be paid in a lump sum or deducted from salary over time Cannot fine or suspend an employee for more than 6 months (exceptions related to immediate suspensions) CSC Appeal Procedure (Continued) Burden of Proof (N.J.S.A. 11A:2-21) Employer has burden of proof Employees in working test period have certain rules that are different Example: burden of proof is on the employee CSC Appeal Procedure (Continued) Other CSC Appeals Regulations (N.J.A.C. 4A:2-1.1 et seq.) Can appeal to Civil Service Commission within 20 days after receiving notice of the decision Appeals are reviewed on a written record unless there is a material and controlling issue of fact which can only be resolved by a hearing After filing appeal, can petition Commission for stay of decision or other interim relief, and can appeal that decision to Appellate Division Major discipline: burden of proof on appointing authority Employee Discipline for Municipal Police Officers Overview of Employee Discipline for Municipal Police Officers Just Cause Suspensions Review of Disciplinary Convictions Illegal Suspension or Dismissal Just Cause Rights of Officers (N.J.S.A. 40A:14-147) Cannot be removed, suspended, fined, or reduced in rank other than for reasons of incapacity, misconduct, or disobedience of rules and regulations Departmental complaint must be served on the officer with opportunity for hearing Opportunity for hearing must be provided between 10 and 30 days from service of the complaint Just Cause (Continued) 45-Day Rule (N.J.S.A. 40A:14-147) For complaints charging violations of the rules and regulations, complaint must be filed within 45 days of obtaining sufficient information to file the complaint If concurrent criminal investigation, the 45 days begins after the disposition of such criminal investigation 45-day rule does not apply to complaints raised by private individuals Right to hearing can be waived, and direct appeal may be sought Suspension of Officer Suspension Pending Hearing (N.J.S.A. 40A:14-149) If officer is suspended pending a hearing due to charges made against him, hearing must commence within 30 days from date of service of complaint Suspension of Officer (Continued) Suspension of Officer Charged with Offense (N.J.S.A. 40A:14-149.1) Officer can be suspended with pay if charged with offense under the law until the case is disposed of or dismissed Officer can be suspended without pay until case is disposed of or dismissed, if: Grand jury returns indictment Officer is charged with high misdemeanor Officer is charged with crime involving moral turpitude or dishonesty Suspension of Officer (Continued) Reinstatement and Recovery of Withheld Pay (N.J.S.A. 40A:14-149.2) If suspended officer is found not guilty or charges dismissed: Reinstated Entitled to recover all pay withheld during suspension Subject to disciplinary proceedings or administrative action Suspension of Officer (Continued) Reimbursement to Municipality (N.J.S.A. 40A:14-149.3) If officer is suspended with pay and found guilty, officer must reimburse municipality for all pay received during suspension Review of Disciplinary Conviction (N.J.S.A. 40A:14-150) For non-Civil Service jurisdictions, appeal can be taken in superior court (but can submit appeal to arbitration for removal if it is for a non-criminal offense) Must serve written notice of an application upon the body whose decision is being appealed within 10 day of receiving notice of conviction Court hears the matter de novo on the record below Can affirm, reverse, or modify conviction Parties can supplement record with additional evidence Illegal Suspension or Dismissal (N.J.S.A. 40A:14-151) If officer suspended or dismissed, and it is judicially determined to be illegal, officer is entitled to recover salary from date of suspension or dismissal Written application must be filed with municipal clerk within 30 days after judicial determination Major Discipline (Continued) Removal Appeals of Certain Law Enforcement Officers and Firefighters (N.J.A.C. 4A:2-2.13) If officer wants hearing, must be held within 30 days of removal’s effective date unless waived or agree to hearing at later date Must issue FNDA within 20 days of hearing and serve personally or by certified mail If no hearing, FNDA must be issued within 30 days of removal effective date Major Discipline (Continued) Removal Appeals of Certain Law Enforcement Officers and Firefighters (N.J.A.C. 4A:2-2.13) Officer can appeal within 20 days of receipt of the FNDA (does not matter when appellant’s attorney/representative receives it) Must file appeal with both OAL and CSC; if neither, then untimely and will be dismissed OAL’s decision goes to CSC, who issues final decision within 45 days of receipt of ALJ’s initial decision If no decision, ALJ’s becomes final or Commission can extend review period by no more than 15 days Major Discipline (Continued) Removal Appeals of Certain Law Enforcement Officers and Firefighters (N.J.A.C. 4A:2-2.13) Commission’s final determination must be rendered within 180 calendar days from initial suspension without pay unless related to pending criminal investigation or conduct that would constitute a violation of criminal law and which seek removal from employment Otherwise, continue with salary at time of removal until decision is reached Certain days are excepted from this calculation Examples include reasonable postponements, delays, etc. Major Discipline (Continued) Removal Appeals of Certain Law Enforcement Officers and Firefighters (N.J.A.C. 4A:2-2.13) Appellant does not get base salary if OAL denies appeal If CSC grants appeal, Appellant is immediately reinstated with base salary Within 60 days of decision, gets back pay, benefits, seniority and possible counsel fees Not entitled to base salary if officer appeals removal to Superior Court, Appellate Division, but continues with base salary if appeal is by appointing authority Major Discipline (Continued) Removal Appeals of Certain Law Enforcement Officers and Firefighters (N.J.A.C. 4A:2-2.13) If CSC denies officer’s appeal, he must reimburse appointing authority all pay received during period of appeal If appellate court affirms removal, officer must reimburse appointing authority for all pay received during period of appeal Attorney General Guidelines on Internal Affairs Policy & Procedures Overview of Attorney General Guidelines on Internal Affairs Policy & Procedures Rules and Regulations Rules and Regulations Form a Code of Conduct Broadly state do’s and don’ts Does not have to delve into specifics Rules and Regulations (Continued) Identify Categories of Misconduct/Inappropriate Behavior for Discipline Examples Crime Improper arrest Improper entry Improper search Differential treatment Demeanor Serious rule infractions Minor rule infractions Rules and Regulations (Continued) Schedule of Possible Penalties and Progressive Discipline Should set forth schedule of possible penalties when officer is disciplined Should incorporate system of progressive discipline Instructional or remedial devices Counseling Training Enhanced supervision Oral reprimand Performance Notice Rules and Regulations (Continued) Schedule of Possible Penalties and Progressive Discipline Progressive Discipline Oral reprimand or performance notice Written reprimand Monetary fine For Civil Service Jurisdictions, can only institute fines in lieu of suspension for safety reasons or if agreed to by the employee Suspension without pay Loss of promotional opportunity Demotion Discharge from employment Uniform Administrative Procedure Rules Overview of Uniform Administrative Procedure Rules Burden of Proof Evidence Privilege Hearsay Authentication Witness Settlement Prior Transcribed Testimony UAPR (Continued) Burden of Proof Burden of proof is on the employer Evidence Is probative value substantially outweighed by either undue consumption of time or undue prejudice and confusion? (N.J.A.C. 1:1-15.1) UAPR (Continued) Privilege Rules of privilege apply (N.J.A.C. 1:1-15.4) Hearsay (residuum rule) Hearsay is allowed, but there must be some legally competent evidence to support any ultimate finding of fact sufficient to provide assurances of reliability (N.J.A.C. 1:1-15.5) UAPR (Continued) Authentication If writing is provided to other party 10 days prior to hearing it is presumed authentic, subject to questions raised at hearing (N.J.A.C. 1:1-15.6) Proof can be provided via affidavit or other proof no later than 10 days after the date of hearing (N.J.A.C. 1:1-15.6) UAPR (Continued) Witness Must have personal knowledge or special experience, training or education (N.J.A.C. 1:1-15.8) Familiar rules for expert witnesses (N.J.A.C. 1:1-15.9) Settlement Offers of settlement and proposed stipulations are not admissible (N.J.A.C. 1:1-15.10) UAPR (Continued) Prior Transcribed Testimony If there was a previous hearing with electronic or stenographic recording, can introduce such evidence instead of producing the witness if the other party had a chance to cross-examine, unless the judge determines it is necessary to evaluate credibility (N.J.A.C. 1:1-15.12) Hypothetical 1: Sick Abuse Hypothetical 1 (Continued) Fact Pattern Charge 1 Served with PNDA on 5/13/11 Called out sick on March 18 and 19, 2011 Had already exhausted all his yearly sick time Led to 15 day suspension Charge 2 Served with PNDA on 5/13/11 Called out sick on April 14, 15, and 16, 2011 Had already exhausted all his yearly sick time Led to removal Hypothetical 1 (Continued) Fact Pattern Offenses Sustained Chronic or excessive absenteeism under N.J.A.C. 4A:22.3(4) Violation of Internal Rule and Regulation for sick abuse Violation of the sick policy for attendance Sick policy included a requirement that charges be brought within 30 days of becoming aware of the offense Hypothetical 1 (Continued) Fact Pattern Prior Discipline Reprimand for unsatisfactory attendance on 6/3/10 Charges served on 6/15/10 Reprimand for unsatisfactory attendance on 7/3/10 Charges served on 8/1/10 3-day suspension for unsatisfactory attendance on 3/8/11 Charges served on 4/20/11 5-day suspension for unsatisfactory attendance on 3/14/11 Charges served on 4/27/11 Hypothetical 1 (Continued) How Should Progressive Discipline Be Applied? Is the conduct so egregious by itself to warrant removal? No, just unauthorized absence How many prior offenses were there before removal? Offenses that took place before 4/14/11 Attendance offense on 6/3/10 (reprimand) Attendance offense on 7/3/10 (reprimand) Attendance offense on 3/8/11 (3-day suspension) Attendance offense on 3/14/11 (5-day suspension) Attendance offense on 3/18/11 & 3/19/11 (15-day suspension Might be a big jump from 15 day suspension to removal But 6th attendance offense in a short period of time Hypothetical 1 (Continued) How Should Progressive Discipline Be Applied? How many prior offenses actually count for progressive discipline with respect to the removal? Offenses that do not count 3/18/11 & 3/19/11 (15-day suspension) Served on 5/13/11: same day as served with offense for removal 3/8/11 (3-day suspension) Served on 4/20/11: after the offense for removal 3/14/11 (5-day suspension) Served on 4/27/11: after the offense for removal Hypothetical 1 (Continued) How Should Progressive Discipline Be Applied? How many prior offenses actually count for progressive discipline with respect to the removal? Offenses that do count 6/3/10 (reprimand) Served on 6/15/10: on notice when he committed the offense 7/3/10 (reprimand) Served on 8/1/10: on notice when he committed the offense Hypothetical 1 (Continued) Additional Issues for 15-Day Suspension Similarly, only the written reprimands would count for progressive discipline 45-day rule Must bring charges within 45 days Hypothetically may have had sufficient information by 3/20/11 Not charged until 5/13/11 Internal rules and regulations violation must be dismissed But, N.J.A.C. charges are not subject to the 45-day rule Hypothetical 1 (Continued) Additional Issues for 15-Day Suspension 30-day rule in the policy Policy says charges must be brought in 30 days Called out on 3/18/11 & 3/19/11 Not charged until 5/13/11 Policy charge must be dismissed But, N.J.A.C. charges are not subject to the 30-day rule Hypothetical 1 (Continued) Penalty Ultimately Assessed 15 days upheld and then a 90-day suspension based on the fact that he already used up so many absences and other aggravating factors Hypothetical 1 (Continued) Back Pay Removal was modified to a 90-day suspension Entitlements Mitigated back pay Benefits Seniority For what period? Period following suspensions to the date of actual reinstatement Hypothetical 1 (Continued) Counsel Fees Must prevail on all or substantially all of the primary issues in an appeal Penalty of removal modified But charges sustained and a 90-day suspension imposed No counsel fees Winters v. North Hudson Regional 212 NJ 67 (2012) Principles of equitable estoppel to public employee disciplinary matters and subsequent litigation challenging the discipline Winters The Facts Prior discipline employee was demoted and suspended for 60 days Second discipline sought removal for employee working in other positions while out on sick leave with employer Employee appealed to Civil Service Commission and had hearing before an Administrative Law Judge Winters Allegations of retaliation at the OAL proceeding Given opportunity to present his defense at the OAL hearing Employee does not fully develop defense Employee’s removal is upheld by CSC and affirmed by Appellate Division Winters During pendency of appeal, employee files a civil suit alleging violations of CEPA and LAD Terminated in retaliation for whistleblower activities which included those raised at the OAL hearing Winters Supreme Court frames issue as whether an employee should be barred from seeking to circumvent discipline through a subsequent CEPA action alleging retaliation Barred Winters from bringing his civil suit Afforded a full hearing in OAL matter, identical parties Winters chose not to provide comprehensive proof of his retaliation defense before the OAL Winters Supreme Court proclamation: “We therefore put users of the public employment system of employee discipline on notice that integration of employerretaliation claims should be anticipated and addressed when raised as part of the discipline review process. It is unseemly to have juries second-guessing major public employee discipline imposed after litigation is completed before the Commission to which the Legislature has entrusted review of such judgments.” Application of Winters Not just to OAL matters What if not raised at all How to prepare Likely effects Hypothetical 2: Immediate Suspension Hypothetical 2 (Continued) Background Facts Served with immediate suspension notice on 12/9/11 based on various charges Advised that a Loudermill hearing would take place on 12/13/11 to determine if suspension would continue with or without pay pending hearing on removal Notice stated that immediate suspension was necessary to maintain safety, health, order or effective direction of public services Hypothetical 2 (Continued) Background Facts Served with immediate suspension notice on disciplinary action on 12/9/11, summarizing incident: officer was engaged in the unauthorized and improper use of OC spray by improperly spraying it onto another officer’s water bottle Loudermill hearing conducted on 12/13/11 and officer suspended without pay On 2/3/12, the appointing authority served an amended PNDA to include administrative charges for conduct unbecoming and other administrative charges Hypothetical 2 (Continued) Background Facts IA received a report on 6/16/11 about the spray IA referred it to the prosecutor’s office, who investigated until 12/8/11 Appointing authority received report from the prosecutor’s office on 12/8/11 Officer suspended on 12/9/11 On 2/13/12, officer informed appointing authority he was waiving a departmental hearing FNDA was issued on 2/16/12, removing the officer Hypothetical 2 (Continued) Objections/Conclusions Not served with a PNDA at time of immediate suspension, but with internal forms: immediate suspension notice and request for disciplinary action forms Agency can develop its own forms: just need requisite notice Got notice of charges from immediate suspension notice Got statement of facts supporting charges from request for disciplinary action Hypothetical 2 (Continued) Objections/Conclusions Had opportunity for a pretermination hearing pursuant to Loudermill Proper PNDA should have been served in 5 days, but no deprivation of due process Hypothetical 2 (Continued) Objections/Conclusions Because he was asked to write a written statement, this was in violation of regulations that state that the officer cannot be compelled to testify against himself Written statement is not the equivalent of testifying against himself Hypothetical 2 (Continued) Objections/Conclusions Did not receive a suspension hearing or an FNDA on his suspension without pay Not required to give an employee a hearing to determine sufficiency of immediate suspension or that he be served with an FNDA in that regard The requirement is only that the employee be apprised orally or in writing of why an immediate suspension is sought, the charges and general evidence in support of the charges, and given opportunity to review charges evidence and to respond Was given requisite notice and opportunity to respond Hypothetical 2 (Continued) Objections/Conclusions Did not receive departmental hearing within 30 days of notice of charges But he waived the departmental hearing and appealed removal Even if there was a procedural deficiency, it did not warrant dismissal of the charges: deficiencies at departmental level which do not significantly prejudice officer are cured through a de novo hearing at OAL Hypothetical 2 (Continued) Objections/Conclusions Objection to amendment of PNDA Appointing authority can amend charges against employee prior to conclusion of departmental proceedings If employee is apprised of charges and has ability to challenge additional charges, employee will not be prejudiced by the amendment If officer had not waived departmental hearing after receiving the amended PNDA, it would have had opportunity to challenge the amended charges Hypothetical 2 (Continued) Objections/Conclusions Violation of the 45-day rule 45-day rule begins on the day after the disposition of the criminal investigation After referring matter to prosecutor’s office, did not receive investigation report from prosecutor’s office until 12/8/11 Petitioner then charged next day on 12/9/11 and immediately suspended Even though Prosecutor’s office completed its investigation 4 months before, the appointing authority did not receive the report until 12/8/11 Hypothetical 2 (Continued) Objections/Conclusions Validity of immediate suspension Sufficient to uphold immediate suspension Justified as petitioner was charged with serious offenses Public interest would not have been served if officer could have been placed back on job pending conclusion of departmental hearings Law enforcement officer held to a higher standard Hypothetical 2 (Continued) Objections/Conclusions If it goes to hearing: If he wins at OAL, he will get back pay If the proceedings are not completed within 180 days, he would begin receiving his regular salary Social Media & The Right to Discipline Employees’ Free Speech & Right To Privacy v. Employers’ Right To Discipline/Termination • Employee has a First Amendment right to free speech and a Fourth Amendment right to privacy in certain of his personal belongings. So, the question becomes: When can an employer regulate the activities of its employees that occur online in the context of social networking? • Some of this will depend on whether you are a public or private employer. Legal Risks – Right to Discipline Employer has the right to discipline and/or terminate when: • the person is an employee, and • the activity violated an Employer policy (and was not protected, concerted activity) Legal Risks – Protected Concerted Activity • Generally under the National Labor Relations Act, an employer may not retaliate against employees for engaging in conduct that is considered “protected, concerted activities.” • That means when 2 or more employees complain about their working conditions they are protected from adverse action from their employer. • These employees do not have to be unionized in order to be protected under the NLRA. Legal Risks – Protected Concerted Activity • Recent cases reveal that the NLRB is using social media to demonstrate its commitment to protect employees. • In NLRB v. AMR: union employee posted negative comments about her supervisor on her Facebook account after he denied her union representation during an investigative meeting. On Facebook that night, she called him very derogatory names. Other co-workers joined in on the wall posts in support of the original employee. She was fired for her original post which violated AMR’s social media policy by placing AMR in a bad light on a social network. • Case settled in first month. Legal Risks – Protected Concerted Activity NLRB v. Thomson Reuters: NLRB threatened to file a complaint against Thomson Reuters for disciplining an Employee for tweeting the following: Legal Risks – Protected Concerted Activity • Because this writer was making statement for all guild members, this is also being considered “protected concerted activity.” • This employee is a union activist AND • Was only verbally disciplined. • Case settled before complaint issued. Legal Risks – Protected Concerted Activity • NLRB v. Hispanics United of Buffalo – employees engaged in concerted activity protected under the NLRA when they used a worker’s personal Facebook page to post angry and defensive messages regarding a co-workers comments about their work. • First post-hearing decision by an NLRB judge involving a Facebook posting. • Reason for termination of employees (harassment) unsubstantiated Legal Risks – Protected Concerted Activity NLRB scrutinizing these types of communications and going after companies who are taking action against any employees on social media engaging in protected activity with or without union ties. Legal Risks – Protected Concerted Activity • Individual gripes are not considered protected concerted activity • Factors which demonstrate the post was an individual gripe: • No particular audience in mind when making post • No language suggesting attempt to get co-workers to engage in group action • Does not grow out of prior discussion about terms and conditions • No extended discussion over working conditions Legal Risks – Terminations Upheld • The NLRB has been upholding terminations so long as they do not involve protected, concerted activities. • Employee fired for using expletive in conjunction with company name and stating that company did not appreciate its employees – discharge upheld even though other employees commented on the post. • Employee fired after posting that coworker/bartender was a cheater who was screwing over customers, was dishonest and management looks the other way which will be the “death of the business.” - discharge upheld even though other employees commented on the post. Legal Risks – Terminations Upheld • Newspaper employer who “encouraged” employee to discuss concerns with human resources instead of posting them on twitter – Later, managing editor told employee not to post grievances or comment about the paper in a social media forum that might damage the goodwill of the company – Employee Tweeted critical comments – employee terminated – NLRB Advice memorandum: terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so" does not violate the employee's NLRA rights. Employee was fired for misconduct that did not constitute protected concerted activity Legal Risks – Overbroad Policy Provisions • In a recent report by the NLRB Acting General Counsel, several social media policy provisions were found overly broad: • Limiting employees to making “appropriate” comments on social media websites • Prohibiting comments that were of a confidential, sensitive or non-public nature • Prohibiting employees from making disparaging remarks about the company Legal Risks – Valid Policy Provisions • Prohibiting the use of social media to “post or display comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing or a violation of the employer’s workplace policies against discrimination, harassment or hostility on account of a protected class under state or federal law.” • Requesting that the employee confine their social networking to matters unrelated to the Company to ensure compliance with securities regulations and other laws. Legal Risks – Valid Policy Provisions • The most recent NLRB report clarified that the use of examples of prohibited conduct can make a social media policy provision lawful, even if it is otherwise overbroad • Examples prohibit plainly egregious conduct and therefore could not reasonably be read to prohibit Section 7 activity • Prohibiting malicious, obscene, threatening, or intimidating comments was cured by examples: harassment, bullying, contributing to hostile work environment based on status protected by law • Requiring maintenance of confidentiality of trade secrets and private confidential information was cured by examples of prohibited disclosures: related to development of systems, process, products, know-how, technology, internal reports, procedures, or other internal business-related communications Currently In The News Two West Orange cops under internal investigation after they commented on a post about a Newark murder victim Comments claimed victim was a gang member with a long criminal history One officer commented “Live by the gun die by the gun BOOM” Mother and friends of murder victim urging City to fire both officers Currently In The News Irvington Police Officer and union president Maurice Gattison “Gat” made gangster style rap videos with other police officers and posted them on YouTube Videos show gun, badge, and mace while rapping about crime and violence Homophobic slurs, promises of violence, claims of being a “felon for life” All four are now the subject of an internal investigation.
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