Most private employers are not subject to specific federal, state or local laws requiring fairness in the workplace, aside from prohibitions against illegal discriminatory conduct. However, if you work for a private company, your employee policy manual may contain procedures that the employer has agreed to follow before imposing any type of discipline or taking adverse action against you (such as a shift change, letter in your file, etc.). Review your employment policy manual as soon as you know you are accused.
If a Collective Bargaining Agreement Governs
If you are a union employee, you should immediately review your collective bargaining agreement. Sometimes these are available on the internet from your local's website. Sometimes they are available on your employer's website. At any event, your shop steward or building representative should be able to provide you a copy promptly. Review the section on discipline very carefully.
If Personnel Rules for Public Employment Govern
Public Employees that are not represented by a union will be subject to their agency's personnel rules. Most agencies today have these posted on-line. Review the sections relating to discipline very carefully. Look for the provisions governing: (a) types of conduct prohibited; (b) the notice, hearing, and appeal process; and (c) right to representation. Understand the steps, the requirements for written notice, and the hearing processes.
Understand the Investigation Process
You should understand that your employer is entitled to conduct an investigation, and you have a duty to cooperate. However, in order to fully respond and cooperate, you must know precisely: (a) the conduct that you are alleged to have engaged in; (b) the specific rule(s) that such conduct would violate; and (c) the range of discipline that you face if the allegations are found to be supported by credible evidence.
Investigations Must be Fair, Thorough and Fact-Based
Too many employers, even those with HR departments and entire personnel management departments, fail to conduct good investigations. They drag employees in without first providing a written notice of specific conduct that, if proven, would violate specific workplace rules. They generally quiz the accused in vague ways, such as: "Tell me how you've been getting along with Dave. He says you've been disrespectful to him. How do you respond to that?" One cannot fully respond to such vague questioning, and you should be direct in your inability to do so. You have a right to ask: (1) Who is complaining about you? (2) What specific rule are you alleged to have violated? (3) When and where did the alleged misconduct occur? (4) Is there a specific range of discipline you face if the allegations are found to be true?
Demand the Right to Supplement Responses
If the employer springs information on you at an investigative meeting, and you were not fully prepared to respond to the allegations, insist that you were surprised by the information and did not have adequate time to prepare. Insist that you need a written description of the specific conduct alleged to have occurred; the right to respond in writing after this is provided; and the right to know precisely which rules you are claimed to have violated. Then review the written allegations, and if you believe your verbal response was inadequate, provide a written supplemented response.
Take a Representative or Attorney with You
Many clients have expressed to me later that they wished they had engaged counsel sooner. They were surprised how ineffective their union representative was (but you should always AT LEAST have somebody there). You must understand that your building representative may be only marginally more familiar with the CBA or personnel rules than you are, and they are often not well-suited to a position that requires popularity to maintain.
After Discipline is Proposed
After the investigation concludes, if discipline is imposed, it is not too late to hire counsel. Usually, it is better to do this prior to the recommended discipline, but if you act quickly, you can appeal and include new information for the employer's consideration. If that is not appropriate in your circumstance, your attorney can still review whether the employer properly followed the CBA or personnel rules.
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