1. Wrongful Discipline Act and Just Cause:
Necessary for Terminations and
Puiggari & Associates
Michele Puiggari

2. WHY? The Law supervise employees Employees aren’t perfect
Know the law to stay out of trouble
MACo must approve termination
Must follow process to have MACo’s approval

3. Types of Legal Actions Related to Terminations
Discrimination
Montana Human Rights Act
Sex, age, race, physical or mental condition, creed, nationality religion
Wrongful Discharge
Violated WDA
Terminated without good cause, or against public policy or in violation of handbook
If public employer—terminated without just cause
Unemployment Insurance
MT et. seq.

4. Wrongful Discharge Act
§ Elements of wrongful discharge-presumptive probationary period
(1) A discharge is wrongful only if:
 (a) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy;      (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or      (c) the employer violated the express provisions of its own written personnel policy.
 (2) (a) During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason.      (b) If an employer does not establish a specific probationary period or provide that there is no probationary period prior to or at the time of hire, there is a probationary period of 6 months from the date of hire.

5. Wrongful Discharge Act
ONLY TWO TYPES OF DISCHARGE:
a constructive discharge
Any situation employer severs relationship ( including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason)
“Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.
Can only use WDA defenses if provide grievance policy within 7 days
Defenses: limits damages to 4 years wages

6. Probationary Period Must Still be cautious
Can still have claim of discrimination
Must still document reasons for suspension/termination
Should still provide Due Process letter and allow employee to respond
GOAL: Be able to establish employee knew performance issues and had chance to respond and improve

7. UI Goal for UI Law to get UI:
Give person cushion until they can find work
Law to get UI:
If employee is fired by employer, employer must show person terminated for misconduct or gross misconduct
"Gross misconduct" means a criminal act, other than a violation of a motor vehicle traffic law, for which an individual has been convicted in a criminal court or has admitted or conduct that demonstrates a flagrant and wanton disregard of and for the rights, title, or interest of a fellow employee or the employer.
If employee quits, employee must show they had good cause

8. Misconduct" includes but is not limited to the following conduct by an employee:      (i) willful or wanton disregard of the rights, title, and interests of a fellow employee or the employer;      (ii) deliberate violations or disregard of standards of behavior that the employer has the right to expect of an employee;      (iii) carelessness or negligence that causes or is likely to cause serious bodily harm to the employer or a fellow employee; or      (iv) carelessness or negligence of a degree or that reoccurs to a degree to show an intentional or substantial disregard of the employer's interest. (This MEANS YOU BETTER BE ABLE TO SHOW PRIOR DISCIPLINES)      (b) The term does not include:      (i) inefficiency, unsatisfactory conduct, or failure to perform well as the result of inability or incapacity;      (ii) inadvertent or ordinary negligence in isolated instances; or      (iii) good faith errors in judgment or discretion.

9. Besides the law: Good Management
What do you want to know and be able to do when your boss is not happy
If NOT written down
Did Not happen
Credibility question between you and employee
Policy is Contract in Montana
What is your counties’ policy? Discipline and complaint resolution
CBA is contract—must be followed

10. Public Employees
Must be able to show Just Cause for Suspension and Termination
Will be required by CBA for collective Bargaining Unit employees
One of First Things MACo will ask
What is policy?
Did you follow it?

11. Public employees
Public Sector Employees have Property Interest in the Job
Like having a house
To Suspend/Terminate an Employee MUST show Employer Had Just Cause

12. DOCUMENT THE FILE EVERY TIME!!!
When to Discipline
Any time employee violates rules, procedures
YOU ARE THE SUPERVISOR—ACT LIKE ONE. EMPLOYEE IS NOT YOUR FRIEND
NO one ever feels discipline is constructive : be professional and stick to facts
Don’t let employees skate—if don’t discipline then behavior becomes acceptable. The longer you let it happen the harder it is to correct
DOCUMENT THE FILE EVERY TIME!!!

13. What Discipline Should Include
ALWAYS FOCUS ON EMPLOYEE’S PERFORMANCE
What the employee did that was wrong
Facts not opinion
What rule/policy was violated
Can be verbal if you don’t have written policy
Can be behavioral (they are the gossip and create bad feelings among employees. Ok to have policy that all employees must respect each other and not cause friction—be sure to document bad behavior)
What discipline you intend
What behavior you expect for improvement/good performance
The time frame expected for improvement
Can be immediate improvement for the duration of employment

14. Just Cause = Good Cause (kindof) Need for Termination
Definition: Is the Proposed Disciplinary Action Firmly and Fairly Grounded
Your opinion is not enough!
If it is not written down it did not happen
Use 7 Step Process to Analyze whether discipline is for Just Cause—Way to establish GOOD CAUSE
These 7 Steps are a practical and effective way to determine whether a proposed disciplinary action is firmly and fairly grounded

15. 7 STEPS Notice Reasonable Rules & Orders Investigation
Fair Investigation
Proof
Equal Treatment
Penalty

16. Step 1: Notice
Prior to imposition of discipline, employee must have notice of rules and expectations.
Establish through:
New employee orientation
Orientation checklists
Receipts for departmental handbooks and new/revised policies
Periodic reinforcement/coaching
Train on rules
Prior disciplines-warnings
Handing out manual not enough

17. PROOF OF NOTICE Disciplinary Warning Letters Two copies of discipline
You keep one
Employee keeps one
Employee signs
“I acknowledge receipt of a copy of the foregoing warning. My signature does not mean I agree with the discipline”.
Have a witness: If Employee refuses to sign, have witness sign that they saw supervisor give warning letter to employee, employee was verbally told of discipline, employee was offered a copy and employee refused to sign.

18. Step 2- Reasonable Set of Rules
Was the Employer’s rules or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the Employer’s business, and (b) the performance that the Employer might properly expect of the employee?
Ex. Tattoos, can’t criticize employer

19. Step 3-Investigation Step 4-Fair Investigation
Before administering the discipline to an employee, did the employer make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? Interview employee, witnesses, etc.
Step 4-Fair Investigation
Was the investigation conducted fairly and objectively ?

20. Step 5-Proof of Offense Step 6-Equality
Has your investigation produced substantial evidence to prove guilt in the employee’s actions?
Step 6-Equality
Have the rules or orders been handed out evenly and without discrimination?
Selective application of the rules will not support your case.
You must treat all employees equally in order to apply the rules when administering discipline

21. Step 7-Appropriate Discipline
The level of discipline issued must be reasonably related to 1) the severity of the proven violation and 2) the employee’s service record.

22. Due Process letters Before Suspension or Termination
Required by Constitution of US and CBA
Must provide employee Letter
What employee did
What rule violated
Ask for explanation—provide reasonable time to respond
Have Template on MACo website
Consider Employee response when making final decision
MUST DO IF PASSED PROBATION—SHOULD DO EVEN IF NOT

23. Other Issues Final Paycheck
In MT must provide final paycheck at time of termination
unless you have policy which states it will be on next regular payday.
Blacklisting and Protection of Employees
Employee must be given reason for discharge if employee requests reasons in writing
IF employer does not do so, cannot make statement to anyone later (so can not provide reasons in UI defense etc.)
Privacy Rights
Right of Privacy -Article II, section 10 provides that:
“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

24. 39-2-801-Blacklisting and Protection of Employees
Employee must be given reason for discharge if employee requests reasons in writing
IF employer does not do so, cannot make statement to anyone later (so can not provide reasons in UI defense etc.)
Privacy Rights
Right of Privacy -Article II, section 10 provides that:
“The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

25. Ex. Of why need good disciplines: FMLA
Employer can enforce strict call –in procedures
Employer policy for everyone: all absences must be phoned into a certain number on a daily basis. If an employee fails to report for two days and has not called in person will be considered to have voluntarily quit.
Employee on FMLA must either call in OR have submitted valid medical certification
Employee certification not complete. Sent home and asked to have it completed. Did not turn it in completed or call in for 5 days. Employee terminated. Terminated upheld.