Disciplinary Actions in the Public Sector League of Municipalities

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.