The Final Loudermill Question!!!!
brown
23 Posts
We used the language "As a result of your violent behavior described below, THC COMPANY is contemplating serious disciplinary action against you, up to an including termination of your employment." Someones has now suggested that this is not specific enough....does anyone agree or disagree?
Sincerely,
Wading Through Municipal Labor Law
Sincerely,
Wading Through Municipal Labor Law
Comments
Dear Bad Employee:
Notice is hereby given that the (Employer) intends to suspend you without pay for twelve (12) work days for dishonesty, and/or sick leave abuse, and/or otherwise failure of good behavior based on the following: On (Date) you did not report to work or contact the office to explain your absence. You then told your Supervisor that you did not report to work on (Date) because of illness. You then submitted a sick leave request form for (Date). You later admitted that you lied to your Supervisor and that you were really incarcerated in the County Jail on (date).
A pre-disciplinary conference will be held on this matter on (Date and Time) in the (Location). At this hearing, the Employer will submit its case to support its proposed action, and you may respond to the charges brought against you. You may obtain the assistance of representation on your behalf. After the conference, the Hearing Officer will consider the information submitted and make a written recommendation.
This letter will be the only formal notice of the hearing. If there are any changes, you will be notified. Failure to attend this meeting as scheduled will result in a waiver of your right to a pre-disciplinary hearing.
Sincerely,
Human Resources Director
You may upon signing this correspondence and returning it to the H.R. Office, waive your right to a pre-disciplinary hearing. Doing so will result in implementation of the proposed disciplinary action.
I fully understand and voluntarily waive my rights to a pre-disciplinary hearing in this matter.
_________________________
Name Date
_________________________
Witness
You should come and try a spin in the public sector. Our staff not only have civil service protections and appeal rights, but they are protected by a CBA. We practically have to have the employee standing over the dead body with the knife in hand and a reminder note that says "pick up eggs, kill co-worker, get haircut" to have employee discipline stick. We win them only when we have all our ducks in a perfect row.
Shawn
We won a big majority of them -- at least our agency in the County did -- even though many of the hearing officers were philosphically more in line with a non-management attitude and sometimes even the commissioners were too.
We had a two roles in this "process." Firstly, we worked within the agency to assist supervisors and managers in dealing with problem employees -- documenting; counseling; disciplining; helping to write evaluations,; minor investigations; training; advising managers and sueprivsors various issues and actions. Thus we were able to get the process started on the right road and sort of plan ahead -- if we were contacted early.
We made recommendations to agency management on whether actions and to what degree should be taken in the first place.
We also formed allegations that would be the basis of disciplinary actions, including suspension and discharges, and wrote both the intent and final action letters specifying the allegations and facts to support them., Then we did the second part of our job. We represented the agency -- actually put on the case as non-attorneys without any legal counsel present to assist us -- before the hearing officers. These hearings had examination and cross, foundation of evidence, objections, and opening and closing arguments facets. The hearing officer had to find on a preponderance of evidence that the allegations and facts supported the action our agency took as spelled out in the final action letter. We would write similar style letters that you give an example of above. Ours may be were a little more detailed and we would give a "moralizing" pargaraph explaining or "justifying " why the action we were taking was approparite under the facts and overall situation.
The dual role allowed us to be familiiar with the case to a large degree. We understod the issues, had a pretty good idea of the detail and what actually went on. Thus we did generally an effective job both in preparation of the case and in presenting it. At the same time, in reading the findings of facts and conclusions of law, we saw the trends that were developing amongst the various hearing officers and civil serivce commissioners; we were able to feed all that back into the way we worked with the individual managers and supervisors in dealing with performance and conduct issues.
All in all, I must have presented about 90 or more cases, and been involved with another 30 or so in a 15 year period.
It was one of the most rewarding, interesting and challenging jobs I've come across.
"Education v. Loudermill held that most public employees are entitled to a hearing before they are discharged."
He was already a permanent employee and could only be fired for cause. He appealed the discharge to the Civil Service Commssion where a hearing officer recommended that the discharge be overturned, apparently accepting Loudermill's position that he thought he had been convicted for a misdemeanor not a felony. The Civil Service Commission did not accept the hearing officer's recommendation but sustained the discharge.
Loudermill then took the matter to federal district court even though his appeal rights were normally for state court review. He argued that he was deprived of due process because he was not given an opportunity to respond to the allegations prior to his discharge. The district court tossed it out on tehcnical grounds, in 1983, saying that the post-discharge hearing sufficiently protected Loudermill's due process rights.
He then took the matter up to the Sixth Appellate District which held that he did have a right to a pre-termination hearing. The Board of Education then petitioned the US Supreme Court to hear the case.
I should note that by the time the case went into federal court, the California State Supreme Court, and federal courts in the country, including the US Surpeme court, had already heard arguments on this issue -- pre-termination rights of a permanent or propertied civil service employee -- and had sustained the position that the emplyee in those cases were entitled to pre-termination hearings. What Loudermill was doing was bringing the issue again and applying it to the 6th Circuit.
At the same time the Supreme Court heard the Loudermill case, it also heard a similar case also from the 6th Circuit. The Court made its ruling in 1985.
If you want to read the Opinion it is in 470 US 532. That's volume 470 of the United States Reports (meaning the US Supreme Court), at page 532.