Category: Termination

October 12, 2017

Disciplining Public Employees in New York Under Civil Service Law Section 75

Section 75 of the New York Civil Service Law establishes procedures for disciplining many governmental employees in the state. Public employers must know which employees these rules apply to and what the rules are.

This post will address:

Which employees Section 75 protects
Alternatives to Section 75
Section 75 charges
Section 75 hearings
Post-hearing procedures

Who is in Civil Service?

All governmental employees in New York are in either the “Classified” or “Unclassified” Civil Service. The Unclassified Civil Service consists primarily of:

Elected officials
Officers and employees of the State Legislature
Certain Governor-appointed positions
Members, officers, and employees of boards of elections
Certified teachers and supervisors of school districts and BOCES
Certain professional positions in the State University and Community College systems

(For information about disciplining teachers in New York, read my post on New York Teacher Tenure Rights.)

All other positions are in the Classified Civil Service.

The Classified Civil Service is further divided into exempt, competitive, non-competitive, and labor classes. Classified Civil Service positions are competitive by default, unless the applicable civil service commission establishes otherwise. The competitive class includes all positions for which it is practical to assess the merit and fitness of employees by competitive examination.

Exempt positions within the Classified Civil Service are usually policy-making positions. Non-competitive positions are ones for which it is not practicable to conduct competitive examinations.

Among other things, these classifications help determine whether Section 75 applies in disciplining a particular employee.

Which Civil Service Employees Does Section 75 Cover?

Section 75 applies, by default, when a public employer seeks to discipline the following members of the Classified Civil Service (with limited exceptions):

All competitive class permanent appointees.
Any permanent appointee who was honorably discharged from the U.S. armed forces after serving in time of war.
Any permanent appointee who is an exempt volunteer firefighter.
An employee who has served at least 5 years of continuous service in a non-competitive position not designated as confidential or influencing policy.
A non-competitive employee of New York City in the position of Homemaker or Home Aide who has at least 3 years of continuous service in the position.
A police department employee holding the position of detective for three continuous years or more.

Employees can waive the protections of Section 75, including through their unions. Often, collective bargaining agreements will provide that grievance and arbitration procedures will apply instead of Section 75’s procedures.

Section 75 Disciplinary Charges

When an employer wants to discipline an employee subject to Section 75, it must serve the employee with written charges of misconduct and/or incompetency. The notice must identify the proposed disciplinary action and the reasons for it. Usually, an employer can only seek discipline for alleged incompetency or misconduct within the past 18 months.

The employee must have at least 8 days to answer the charges in writing.

Interim Suspension

Once an employer serves the charges, it may also suspend the employee without pay for up to 30 days. If the charges are not resolved in that time, the employer must restore the employee to the payroll.

Employees acquitted of the charges must be restored to their position with full backpay, less any unemployment benefits received.

Hearing Process

Under Section 75, the employer designates the hearing officer. This can be an officer or employee of the disciplining employer or an outside person. Sometimes, however, collective bargaining agreements modify the employer’s right to select the hearing officer unilaterally.

The hearing officer will oversee a hearing on the disciplinary charges. The hearing typically proceeds much like labor arbitration hearings, without formal rules of evidence or procedure.

The charged employee may have representation by an attorney or a union representative during the hearing. The employee and employer may both call witnesses and present evidence. The employer bears the ultimate burden of proving incompetency or misconduct.

The hearing office must make a record of the hearing and issue recommendations on the charges. The employer, through its board or officer with the power to remove an employee, must review the recommendations and decide the outcome of the charges. In other words, the hearing officer does not actually decide the case under Section 75. The employer does.

If the employee disagrees with the final decision on the charges, they can appeal to the applicable civil service commission or through state court.

When To Pursue Section 75 Discipline

Employers seldom rush to discipline an employee protected by Section 75. Often this is a nearly last resort. Most public employers try to first counsel employees before getting to this point. But some forms of misconduct demand immediate disciplinary action. As does repeated bad behavior or poor performance.

Disciplining a public employee, especially one covered by Section 75, often involves many legal issues. Most employees in this situation have due process rights and other constitutional protections. Many–especially in New York–are in a union. This adds layers of complexity to the discipline process. Or at least it adds incentive to make sure the discipline is done right. Accordingly, most public employers should get legal advice before initiating disciplinary procedures. They should also have legal representation during the hearing process.

September 13, 2017

Employee Releases Under the Older Workers Benefit Protection Act

The federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against employees 40 years or older because of their age. In 1990, Congress amended the ADEA through the Older Workers Benefit Protection Act (OWBPA). The OWBPA includes specific requirements that employers must meet if they want to obtain enforceable employee releases of ADEA claims.

Employers most often seek releases from employees at the end of employment. They typically offer severance pay or other benefits in exchange for a waiver of claims. But if the release doesn’t meet the OWBPA requirements, then the employee may still be able to claim age discrimination.

OWBPA Requirements for Employee Releases

The waiver of claims must be part of a written agreement between the employee and the employer. The agreement must be written in a manner “calculated to be understood by such individual, or the average individual eligible to participate.”
The release must specifically refer to rights or claims arising under the ADEA.
The employee cannot waive rights or claims that may arise after the release is signed.
The employee must receive something of value in exchange for the waiver of rights. It must be something that the employee did not already have the right to receive.
The employer must advise the employee in writing to consult with an attorney before signing the release agreement.
The employer must give the employee at least 21 days to consider the release agreement.
The release agreement must give the employee at least 7 days after signing to revoke the agreement. The agreement does not become enforceable before the end of the revocation period.

Additional Requirements for Group Programs

The OWBPA contains additional requirements for waivers connected to an “exit incentive or other employment termination programs offered to a group or class of employees.” This includes both voluntary and involuntary programs. Thus, it applies both to voluntary resignation programs and involuntary reductions in force. Most likely, it applies to any situation where you ask more than one employee to sign a release related to the same decisionmaking process. It does not, however, necessarily apply when an employer fires two employees around the same time, but for unrelated reasons

For group programs, the employer must allow employees least 45 days to consider the release agreement, rather than 21.

In addition, the employer must give the following information to employees at the beginning of the 45-day consideration period:

A description of any class, unit or group of employees covered by the program, any eligibility factors, and any applicable time limits.
A list of job titles and ages of all employees eligible or selected for the program, and the ages of all employees in the same job classification or organizational unit who are not eligible or selected for the program.

Many employers especially hesitate to provide the age lists required in group programs. However, failing to do so would render the waiver of ADEA claims unenforceable.

Use of OWBPA as a Guideline

The OWBPA only applies to waiver of ADEA claims. Accordingly, many employers choose not to follow all of its requirements for releases by employees under the age of 40. However, an employee could challenge any waiver as unenforceable on basic legal principles. Essentially, an employee could claim that they did not understand what they were signing. Using the OWBPA requirements for all employment releases promotes greater enforceability. If it is good enough for Congress and its federal age discrimination law, shouldn’t it be good enough for all employee waivers?

To reiterate, many employee releases should still be enforceable even if they don’t satisfy some aspects of the OWBPA. But it’s usually not worth taking that risk.

Of course, employers should not try to obtain a waiver of legal claims without the assistance of an experienced lawyer. Each situation may be different and necessitate different approaches.

August 31, 2017

Can I Fire an Employee Over the Phone?

You’ve come to the conclusion that an employee has to go. But now you have to figure out how to do it. For most people, letting an employee go isn’t fun. And the thought of doing it face-to-face is particularly daunting. So, you arrive at the question, can I fire an employee over the phone?

Well, the short answer is “Yes.” You can fire an employee over the phone, or by letter, or email. I suppose you could even send a text these days.

However, the longer answer is, you probably shouldn’t fire an employee over the phone, unless there are compelling circumstances.

Why You Usually Shouldn’t Fire an Employee Over the Phone

In my post 5 Tips for Firing Problem Employees, I provide some advice on how to let a problem employee go. It includes important considerations such as cutting off access to company data and preserving their computer. It also suggests that you be direct and not debate the decision to end their employment.

If necessary, you can follow all the same advice when firing an employee remotely. But there are many advantages to doing it in person in most situations.

Here are just 7 reasons you may not want to fire an employee over the phone:

It’s less personal and may offend the employee. As a result, they may become more problematic as a former employee than they would have otherwise.
You can’t get company property back immediately. They may still have keys, credit cards, computers, etc. You will have to arrange to recover that later, and may not be able to control what the now potentially disgruntled former employee does with them in the meantime.
They can’t take personal belongings with them as they leave. So you will have to make arrangements to clean out their desk, etc., where it may have been easier to let the person do it before they left.
It’s harder to evaluate how the person takes the news. Sometimes it is important to read whether the employee was surprised or not. Or whether they are unduly upset, such that they may cause further disruption for the business.
Bad connections can interfere with the message. Telephone calls break in and out by their nature. Plus, you don’t have the eye contact or view of body language that is important in serious conversations. Video calls don’t necessarily solve these problems, and may lead to even more technological interruption.
In some cases, there may be a contract, policy, or practice that establishes the procedure for notifying an employee of their termination. For example, a collective bargaining agreement may require that a union representative be present.
You can’t provide and go over necessary paperwork as easily. This may include written exit interviews, severance packages, and/or insurance information.

When You Might Need to Fire an Employee Over the Phone

Admittedly, we don’t live in a perfect world. Even if all of the above reasons not to fire an employee over the phone apply in your situation, you might have to do it anyway.

Here are 5 situations when you might need to fire an employee over the phone:

The employee isn’t available to meet in person. They could be hospitalized, travelling, even in jail. These all happen, and sometimes you can’t wait until a physical meeting is possible before sharing the news.
There is legitimate concern that the person in question may become violent. There are bad people out there, and it’s possible that one worked for you. If you have particular fear of personal safety or that the employee will cause damage, etc., then a phone call may be best.
You are firing the employee for no-call, no-show, and they still haven’t shown up. Then you may be lucky to even reach them by phone. Sometimes you will have to settle for just officially notifying the employee by mail.
The employee refuses to meet in person. In that case, they probably already know what is coming. If possible, it may still be better to try to find someone they will meet with before resorting to a phone call.
There isn’t time to meet in person. This should be a rare situation where the employee is remote, such as travelling for business, but has to be stopped immediately from acting on the employer’s behalf.