Investigating and Disciplining Employees in the Public Sector

MEET THE AUTHOR: East Coast Risk Management is happy to welcome Ben Orsatti, Associate General Counsel and Senior Consultant, to our HR team.

A graduate of the University of Pennsylvania as well as the Duquesne University School of Law and admitted to the Bar in 2004; Ben has practiced in state and federal court and has represented both labor and management in interest and grievance arbitration and proceedings before the NLRB, PLRB, EEOC, and OSHA.  Ben’s expertise extends to all areas of labor and employment law, including contract negotiation, compliance review (including OFCCP), employee benefits (including ERISA), and human resources.

by Ben Orsatti, Esquire

It’s your first day on the job as Human Resources Director of Brackenridge County, Pennsylvania. You’ve never worked for a public employer before, and you’ve also never dealt with a unionized workforce before, but in your former life as Controller of a Fortune 500 company, you had disciplined countless employees. So, when you stroll confidently into your office on Day One, only to find the Brackenridge County Prothonotary standing over your desk, arms akimbo, you smile, and think to yourself: “I got this”.

PROTHONOTARY: “Today, one of my Docket Clerks was found with hundreds of dollars’ worth of stolen filing fees in her tote bag. She told her supervisor she wanted to exercise her Weingarten rights, and wouldn’t set foot in my office to get her termination letter until she’d been Loudermilled, but I’m invoking 1620 here, and that gal is history, no matter what you or the Commissioners say about it.”

Your smile is short-lived as you wonder, What are “Weingarten and Loudermill”? What is “1620”? And what on earth does a “Prothonotary” do, anyway?

Before you fill out an action form terminating your own employment, take a breath, politely excuse yourself, and call your friendly neighborhood labor and employment consultant. You’ve just traded in your checkers board for a chess set, and you need to learn the rules of the game.

Section 1620 Rights

The word “Prothonotary” first described the recorder of the court of the Byzantine Empire, but that’s not what’s going to help you right now. What you need to know is that a Prothonotary is not only a department head, but an elected official, and that, as such, per Section 1620 of the Commonwealth of Pennsylvania County Code, she is the one in charge of “hiring, discharging and supervising” all employees serving in the Brackenridge County Prothonotary.

Long story short, if you’re going to do anything relating to employee discipline of Prothonotary employees in your capacity as Human Resources Director for your bosses, the Commissioners, you’re not going to do it without the “buy-in” of the Prothonotary herself – so says the law of the land.

That will take some getting used to. In the private sector, your “boss” was the CEO, whose “bosses” were the Board of Directors, and that’s where your “org chart” stopped. But in the public sector, for the HR decisions you make, you have to constantly keep in mind your responsibilities not only to the Commissioners, but also to department heads, other elected officials, salary boards, prison boards, the County Solicitor, the unions, the employees themselves, and the taxpayers of fair Brackenridge County.

Weingarten Country

In 1975, the United States Supreme Court decided, in a case known as the Weingarten case, that every union-represented employee who reasonably believes he is being subjected to an investigatory interview that may lead to discipline has the right to demand representation by a union agent or fellow employee before giving any information to the employer.

Unlike, say, Miranda rights, an employer doesn’t have to notify employees of their right to invoke their Weingarten rights (that is really the job of the union leadership), so, if an employee chooses not to invoke Weingarten, the investigatory interview may proceed. If present, the union representative cannot assume the role of “adversary”, or otherwise interfere with the course of the investigation. The role of the union representative is merely to provide “advice and active assistance” to the affected employee. Also important to remember is that Weingarten only comes into play during an employee investigation; at the conclusion of an investigation, where a meeting is called merely to inform the employee of discipline already decided-upon, no Weingarten rights attach.

Finally, although Weingarten was decided under the National Labor Relations Act, its principles apply with equal force to public employers under the several state labor or public employment relations acts.

Having been made aware of this information, you advise the Prothonotary to track down the employee’s union rep pronto, only then may she question the employee. While she is doing that, you now have bought yourself some time to learn about going…

From Steel Mill to Loudermill

Unlike your previous gig in the private sector, your job in County government now requires you to be aware of your Constitutional responsibilities as a government actor. Loudermill rights owe their existence to the very basic fact that employees in the private sector do not have a Fourteenth-Amendment Constitutionally-protected liberty and property interests in their reputation and their continued employment, whereas public employees do. Because the government cannot deprive any individual of any of these interests without “due process of law”, an employee facing discipline from a government employer is similarly entitled to those very same due process protections.

So, while a public employee has no right to demand Weingarten protections after the conclusion of a disciplinary investigation, Loudermill makes sure that no such investigation can be concluded (and discipline imposed) until that employee is given: (1) Notice of the charges against the employee; (2) An explanation of the employer’s evidence, and (3) An opportunity to respond, including the chance to present reasons the discipline should not be imposed, either in person or in writing. The Loudermill hearing must occur prior to any deprivation of the employee’s protected employment interest, unless it is clearly impractical, in which case it must occur as soon as possible thereafter. It is important to remember that an actual deprivation must occur before Loudermill is implicated. Thus, placing an employee on paid administrative suspension pending, say, the results of a drug test, is permissible as long as the employee is given a Loudermill opportunity before imposing an unpaid suspension, or termination.

You Are an HR Superstar

While the Prothonotary was interrogating her allegedly-embezzling employee in the presence of the employee’s union business agent, you were hanging on every word of your ever-helpful consultant. Then, after conferring with the Commissioners’ Chiefs of Staff via conference call and making a note in the file of the substance of that conversation, you meet again with the Prothonotary:

PROTHONOTARY: “Well, she says she didn’t do it, but I don’t believe a word – I just don’t like the look of her face”. Where do you keep your COBRA notices around here?”

YOU: “I’m not sure we can just hand her a termination letter without completing the investigation. Have you spoken with all relevant witnesses?”

PROTHONOTOARY: “You betcha.”

YOU: “Well, I’d like to review the notes of those interviews before setting up a Loudermill hearing with the employee.”

You review the notes, and find it odd that only one employee, Lyra McPantzonfyre, recalled seeing the alleged thief anywhere near the cash drawers that morning, and you set up the Loudermill hearing. At the hearing, where the evidence against the employee is put before her, the employee again protests her innocence, except that now, having had the benefit of further talks with her business agent, the employee suggests that the purloined County funds in question be fingerprinted. Lo and behold, the bills are dusted, and the prints of Employee McPantzonfire are all over them!

Due Process wins the day.

If you are an employer with questions about these issues, or any other HR concerns, please send an email to HRhelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

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