1. April 4, 2012 JUST CAUSE AND PROGRESSIVE DISCIPLINE A Framework for Evaluation William A. Earnhart, Esq.

2. April 4, 2012 JUST CAUSE preliminary issues NOT directly applicable in “at will” environment NOT directly applicable in “at will” environment “For cause” employment contract “For cause” employment contract Arbitration agreement- contract Arbitration agreement- contract McDonnell Douglas burden shifting McDonnell Douglas burden shifting Help evaluate/persuade Help evaluate/persuade Qualifications are not “discipline” Qualifications are not “discipline” Certifications and licenses Certifications and licenses Performance? Performance? Last chance agreements Last chance agreements Contract, not “just cause” Contract, not “just cause” Statutory remedies Statutory remedies May be waived/ May not be waived May be waived/ May not be waived

3. April 4, 2012 Public Employees Property right in continued employment/wages Property right in continued employment/wages Laudermill Laudermill CLEVELAND BOARD OF EDUCATION v. LOUDERMILL, 470 U.S. 532 (1985). CLEVELAND BOARD OF EDUCATION v. LOUDERMILL, 470 U.S. 532 (1985). Specific notice of the charges against the employee Specific notice of the charges against the employee Explanation of the employer’s evidence Explanation of the employer’s evidence An opportunity to respond to the charges An opportunity to respond to the charges Peace Officers Peace Officers Garrity Garrity Garrity v. New Jersey, 385 U.S. 493 ( 1967) Garrity v. New Jersey, 385 U.S. 493 ( 1967)

4. April 4, 2012 Union Members Weingarten Weingarten NLRB v. Weingarten Inc. 420 U.S. 251 (1975) NLRB v. Weingarten Inc. 420 U.S. 251 (1975) Right to have Union representative present when discipline is likely outcome Right to have Union representative present when discipline is likely outcome Employee must invoke right Employee must invoke right Employee may refuse to answer until representative is present Employee may refuse to answer until representative is present

5. April 4, 2012 Burden of Proof Employer has burden in discipline case Employer has burden in discipline case Conduct occurred Conduct occurred Business need/notice of rule Business need/notice of rule Appropriateness of penalty Appropriateness of penalty Preponderance of evidence, Romulus v. ASD, 910 P2d 610 (AK 1996) Preponderance of evidence, Romulus v. ASD, 910 P2d 610 (AK 1996) “for cause” in “employment contract” “for cause” in “employment contract” Clear and Convincing; criminal conduct/ moral turpitude Clear and Convincing; criminal conduct/ moral turpitude Organized workplace Organized workplace Generally termination Generally termination Public Policy State v. PSEA (2011) Public Policy State v. PSEA (2011) 257 P.3d 151, 191 L.R.R.M. (BNA) 2686, 161 Lab.Cas. P 61,171 257 P.3d 151, 191 L.R.R.M. (BNA) 2686, 161 Lab.Cas. P 61,171

6. April 4, 2012 WHAT IS JUST CAUSE? If not otherwise defined by contract or code: If not otherwise defined by contract or code: 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. 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.

7. April 4, 2012 Organized Workplace Collective Bargaining Agreement Collective Bargaining Agreement Generally accepted standards for arbitration Generally accepted standards for arbitration Progressive discipline Progressive discipline Appropriate punishment Appropriate punishment Oral Oral Written Written Suspension Suspension How long How long Termination Termination Prior record Prior record

8. April 4, 2012 Seven Tests 1.Forewarning Balance right of employer to impose workplace rules with Employees’ right to know expectations Balance right of employer to impose workplace rules with Employees’ right to know expectations Progressive discipline? Progressive discipline? Sign offs Sign offs Counseling Counseling History History

9. April 4, 2012 2. Rule reasonably related Nexus Nexus Conduct outside of workplace Conduct outside of workplace Grooming/attire Grooming/attire Police and Fire, code of conduct Police and Fire, code of conduct

10. April 4, 2012 3.Investigation required Full Full Situation specific Situation specific Meaningful opportunity to respond Meaningful opportunity to respond

11. April 4, 2012 4.Fair investigation Objective Objective Conflict of interest Conflict of interest

12. April 4, 2012 5.Substantial evidence Reasonable Mind Reasonable Mind Reasonably believed to be true

13. April 4, 2012 6.Evenhandedness Fairness, equality Fairness, equality Situation specific Situation specific Potential issues Potential issues Union activity Union activity Race/religion/gender/etc. Race/religion/gender/etc. Free speech- limited Free speech- limited Reasonable expectation of privacy- NOT Reasonable expectation of privacy- NOT

14. April 4, 2012 6(a) Other Factors History with organization History with organization Specific needs/skills Specific needs/skills DISCIPLINARY HISTORY DISCIPLINARY HISTORY Organizational change 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. 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. probable causereasonable person probable causereasonable person

15. April 4, 2012 7.Reasonable Penalty Purpose is to obtain compliance, NOT to be punitive Purpose is to obtain compliance, NOT to be punitive Discharge not “corrective” in nature Discharge not “corrective” in nature Progressive discipline Progressive discipline Seriousness of offence Seriousness of offence Record of service Record of service Personnel actions Personnel actions CBA CBA Affirmative defense? Affirmative defense? Length of service Length of service Gross misconduct Gross misconduct

16. April 4, 2012 Five Elements, Elkouri 1.Notice of the accusations 1.Notice of the accusations 2.Meaningful opportunity to respond prior to discipline 2.Meaningful opportunity to respond prior to discipline Prejudice to employee? 3.Fair investigation 3.Fair investigation 4.Timely action by employer 4.Timely action by employer 5.No double jeopardy 5.No double jeopardy

17. April 4, 2012 Abrams and Nolan Failed to provide satisfactory work Failed to provide satisfactory work Safety Safety Production Production Workplace harmony Workplace harmony Work rules Work rules Discipline must further a legitimate interest of management Discipline must further a legitimate interest of management Seven tests 1, 2 & 7 Seven tests 1, 2 & 7 Fairness Fairness Seven tests 3, 4, 5, & 6 Seven tests 3, 4, 5, & 6