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

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

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 39-51-et. seq.

Wrongful Discharge Act §39-2-904. 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.

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

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

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

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.

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

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?

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

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!!!

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

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

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

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

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.

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

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 ?

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

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.

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

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. 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.”

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.”

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.