What Is Just Cause?

1. What Is Just Cause? • Philosophy of industrial justice • Combines two basic concepts: • Due process • Progressive discipline • Is there a difference between “cause,” “just cause” & “good cause”?

2. Typical Progressive Discipline Steps • Coaching & counseling (contract or policy may treat as non-disciplinary step) • Verbal warning • Written warning • Suspension without pay • Demotion • Decision-making leave • Termination

3. Just Cause Checklist • Rule No. 1: Did the employee violate a known reasonable rule or order? • Rule No. 2: Did the employee receive an adequate opportunity to correct his/her behavior through the use of progressive discipline? • Rule No. 3: Was the employee treated consistently with other similarly situated employees? • Rule No. 4: Was the employer at fault either in whole or in part?

4. Just Cause Checklist(cont.) • Rule No. 5: Did the employer conduct a full and fair investigation? • Rule No. 6: Did the employee receive the benefit of all procedural protections? • Rule No. 7: Did the punishment fit the crime? • Rule No. 8: Were there any relevant mitigating circumstances? • Rule No. 9: What was the previous record of the employee?

5. Violation of Known Rule or Order • Expectation-setting piece of just cause • “Work now, grieve later” • Was the rule reasonably related to the agency’s business? • Was it sensible? • Was it communicated, and if so, how? • Was it based on workplace common sense? • How to prove employee “knew” the rule?

6. Progressive Discipline • What was the prior level of discipline? • Was the prior discipline for a related issue? • How long has passed since the last discipline? • Is the conduct so serious that prior discipline is not necessary?

7. Comparison to Others • Have there been prior incidents of similar misconduct? • What infractions have resulted in similar penalties? • What is justification for difference in treatment? • Employee work record • Rule changes • Change in supervision

8. Fault of the Employer • Did a supervisor participate in or provoke the misconduct (e.g., insubordination)? • Was the employee adequately trained?

9. Investigations • Did the employer conduct a full and fair investigation? • Thoroughness is a function of circumstances • Did the employer solicit and consider the employee’s version of events?

10. Discipline Investigation Issues • Objective and thorough • Notes vs. tape recorder (consent issues) • Union reps at interviews (Weingarten) • Interviews regarding possible criminal activity (Garrity)

11. Weingarten Issues • General right to union representative in investigatory interviews where employee reasonably fears discipline • Applies only to investigatory interviews • Applies only to unionized employees • Doesn’t apply to fact witnesses • Employee obligation to ask for representative • Union representative’s appropriate role

12. Garrity Rights • Applies when employee faces both criminal prosecution and internal discipline • Harmonizes employer’s right to question employee with employee’s right to protection from self-incrimination • Employer must give assurances that employee’s answers will not be used in any criminal proceeding

13. Investigation Documentation • Paint picture with words • Thoroughly proof • Avoid speculation about motivation • Don’t rely on employee-prepared statements alone

14. Discipline Notice Framework • Introduction • Specify agency’s relevant rules • Apply factual conclusions to rules • Statement of importance • Future consequences

15. Procedural Protections • Were all legal and constitutional protections observed? • Did the agency comply with process promised in contract, handbooks and policies (e.g., Police Officer Bill of Rights)? • Due process implications (e.g., Loudermill)

16. Loudermill Hearings • When are they required • Employees with property interest in job + employer action with financial impact • Employees facing 1) termination for stigmatizing reason or 2) termination of ability to pursue chosen profession (i.e., paramedic reassigned to firefighter) • What documentation to use • How formal are the hearings • Loudermill hearing vs. investigatory interview • Name-clearing hearings

17. Did the Punishment Fit the Crime • Does contract or policy dictate level of discipline? • Examples of “Cardinal Sins”

18. Mitigating Circumstances • Has the employee acknowledged fault? • Did the employee take some action to correct problem? • Did the employee lie during the investigation?

19. Prior Work Record • What is the quality of the employee’s work record? • Are there limits on relevant material?

20. Particularly Difficult Discipline Situations • Insubordination • Direct order + consequence for refusal • Employee disrespect to supervisor • Officer’s lying • Off-duty misconduct