Open Q & A Disciplinary Procedures

Transcription

1 Human Resources and Employment Law Elena Branzaru, DOTD Employment Attorney Candace Rustad, DOTD HR Supervisor Open Q & A Disciplinary Procedures

2 Employment Lawyer Responsibilities Employee Discipline, Non-Disciplinary Removals & Actions Civil Service Appeals Confer with Compliance attorney regarding EEOC claims Advise on FMLA Issues and Ethic Issues/Questions DOTD Point of Contact with Louisiana Board of Ethics (Ethics Liaison) Civil Service for Employment Law Issues Coordinate Cases with Outside Counsel/AG s Office Other Employment Law issues: HIPAA, FLSA, USERRA, etc. 2

3 Civil Service Employee Types Unclassified employees Normally senior management positions At Will employees Classified employees with Permanent Status Have property rights to their current job and current pay Classified employees with Probationary Status Essentially At Will employees 3

4 Disciplinary Process - PPM 26 Civil Service Rules defined disciplinary actions: Dismissal Suspension Without Pay Reduction in Pay Involuntary Demotion Letters of Reprimand, Counseling, and Warnings are NOT Disciplinary Actions & are NOT appealable to the Civil Service Commission. Optional: HQ OSHCM review letters (LOR, LOC, LOW) 4

5 Disciplinary Process - PPM 26 HQ OSHCM and Employment Atty. must review ALL pre-deprivation and disciplinary notices before issued. HQ OSHCM must review ALL supervisory plans before issued. Note: Templates for letters, notices, and supervisory plans are available from HQ OSHCM 5

6 Disciplinary Process - PPM 26 A Classified, Permanent employee MUST be given NOTICE and an opportunity to RESPOND before an appointing authority can effect disciplinary action. That is why we ALWAYS: 1. Issue a Pre-Deprivation Notice 2. Allow the employee time within which to respond 3. Issue a Disciplinary Notice if warranted 6

7 Chapter 12 - Discipline; Corrective Actions; Separations Only an appointing authority may enact discipline. Employees must be give written notice of the proposed action including a detailed description of the facts (pre-deprivation notice) and a reasonable opportunity to respond. When citing prior disciplinary action or improvement letters, please verify that the information cited is correct.

8 Opportunity to Respond In the written response the employee may present evidence to the appointing authority that the recommended action is not deserved or that a lesser disciplinary action should be imposed. Once the employee submits his/her defense, or if the employee chooses not to submit a defense and after the time to respond has expired, the appointing authority then weighs the evidence and decides what to do. 8

9 Opportunity to Respond The appointing authority can impose the disciplinary action that is recommended in the Pre-Deprivation Notice, impose a lesser action or rescind the proposed action. The appointing authority cannot impose an increased disciplinary action--that would require a new Pre-Deprivation Notice. Once the appointing authority decides to impose a disciplinary action, the appointing authority issues a final Disciplinary Action Notice. 9

10 CSR Written Notice of Action Typically referred to as the Disciplinary Action Notice. An employee must be given written notice prior to an action being taken. If hand-delivered, may be effective that day. If mailed, should be effective 10 days after mailing date. The written notice must include: Time and date the action will become effective Details of the facts (copied from pre-deprivation notice) Right to Appeal paragraph

11 Right to Appeal Paragraph You have the right to appeal this action to the State Civil Service Commission within 30 calendar days following the date you receive this notice. The appeal procedure is contained in Chapter 13 of the Civil Service Rules, which is available from the Department of State Civil Service or your Human Resource office. A copy of Chapter 13 of the Civil Service Rules can be obtained from the Department of State Civil Service, 1201 North Third Street, Suite 3-280, Baton Rouge, Louisiana, 70802; from the Civil Service website: or from the DOTD District Human Resources Office located at ADDRESS.

12 CSR Giving Written Notice An employee is deemed in receipt of a written notice when: it is hand-delivered to the employee; OR it is hand-delivered to a person of suitable age and discretion who resides with the employee; OR on the 7th calendar day after it was mailed with correct postage to the employee s most recent address furnished in writing or electronically to the agency s human resource office. 12

13 Tips: Giving Written Notice When mailing to the employee s home address that is on file DO NOT send it Certified Mail. Mail it regular mail with a Certificate of Mailing receipt from the USPS. If sent regular USPS, Civil Service deems the employee in receipt of the letter on the 7th calendar day after mailing. If sent Certified Mail, Civil Service will consider the letter in receipt when the employee ACTUALLY received it or after 7 days if the Post Office returns it undelivered. Employee may refuse to sign, which means there is no proof of notice. A best practice is to date the action required 10 calendar days after the letter is dated and mailed.

14 CSR 12.9 : Improvement Letters Appointing Authority may issue letters (such as warnings, counseling s, reprimands, supervisory plans, etc.) to attempt to improve an employee s conduct. Employee s may respond in writing to an improvement letter. Response must be attached to each copy of letter kept. If the same or similar conduct recurs, the letters can be used to support the severity of future discipline, only if the letter: Advised the employee that the letter would be used for this purpose Advised employee of his/her right to respond Letters may not be included in any publicly accessible personnel record

15 CSR : Suspensions Pending Investigation Also known as administrative leave. Cannot exceed 260 hours. An appointing authority may orally suspend a permanent employee who is suspected of conduct that, if confirmed, would warrant discipline or removal and the employee's continued presence at work during the investigation and subsequent administrative proceedings would be contrary to the best interests of state service.

16 CSR 11.9 Enforced Annual Leave Also known as the cooling off period. Appointing authority may require an employee to take annual leave whenever in his administrative judgment such action would be in the best interest of the Department. Cannot be used if the employee has less than 240 hours of accrued annual leave.

17 CSR Non-disciplinary Removals Civil Service Rules 12.6 states an employee may be non-disciplinarily removed under the following circumstances: Exhaustion of leave Unscheduled absences Failure to obtain/loses license Employee holds more than one position in state service Cause for dismissal that is not the employee s fault

18 Chapter 13 - Civil Service Appeals Who can appeal what? Permanent Employees Disciplinary Actions (within 30 calendar days of receipt of notice) Violations of Civil Service Rules Discrimination in any employment action or decision based on political or religious beliefs, gender or race Probationary Employees Violations of Civil Service Rules Discrimination in any employment action or decision based on political or religious beliefs, gender or race

19 Civil Service Appeal Pursuant to the Louisiana Constitution, the Civil Service Commission has jurisdiction over disciplinary appeals. Employees must file appeals within 30 days of the notice of the action. The Referee will make preliminary rulings on the sufficiency of the appeal, set a hearing date for the appeal, and issue subpoenas. After the hearing is over, the Referee considers the evidence and the law and issues a written ruling. 19

20 Civil Service Appeal Results If an employee prevails, he/she usually gets reinstated(if terminated), back pay, and personnel records corrected to completely remove the disciplinary action. While the employee pays for their own attorney, if prevails, the Referee may award up to $1,500 for attorney fees. The losing party may ask the full Civil Service Commission to review the Referee s ruling. The Commission may accept, modify, or overturn the ruling. The next appeal step is to Louisiana s First Circuit Court of Appeal. The final step is to the Louisiana Supreme Court. 20

21 Any questions? Elena Branzaru Candace Rustad