Be Aware of Public Employees Disciplinary Proceedings Protections: Loudermill, Weingarten and Garrity

LR-Conference-Table-Men-FolderThis post is primarily for public sector employers such as state agencies, municipalities and districts.  By virtue of being employed by the government and quite likely represented by a labor union, public sector employees in Connecticut have an array of rights in disciplinary proceedings which are not necessarily available to employees of private businesses.  These rights are commonly referred to by the names of the legal cases which first established them.  However, we hope that all employers will take note, since what are legal rights for the public sector can also be best practices which provide guidance  for the private sector.

James Loudermill was summarily fired by the Cleveland Board of Education and filed a lawsuit, which eventually reached the United States Supreme Court.   The Court ruled that because an arm of the government controlled his livelihood, he had a property interest in continued employment which could only be rescinded by due process of law.  For terminations (later court decisions added suspensions and demotions; i.e. discipline which ends or reduces compensation), due process required a predetermination hearing, at which the employee would be informed of the charges against him, and be given an opportunity to respond  on his behalf.  A so-called “Loudermill Hearing” can be relatively informal, since its purpose is to be an initial check against a mistaken decision.

Even though constitutional due process does not apply to non-public employment, even private employers should get “the other side of the story” before a final decision is made on personnel decisions such as terminations, suspensions or demotions.

J. Weingarten, Inc., whose employees were represented by a labor union,  was charged with an unfair labor practice by the National Labor Relations Board because the company denied union representation to an employee during an investigatory interview.  The company’s appeal reached the United States Supreme Court, which upheld the NLRB rule now nearly universally known as “Weingarten Rights:” an employee being interviewed on a matter which might lead to discipline has the right to request union representation, after which the employer must either end the interview, or delay it (for a reasonable time) so that the union representative can arrive and counsel the employee.  Denial of union representation by requiring the employee to participate in the interview is an unfair labor practice.

Although established by the NLRB, Weingarten Rights have been adopted by the Connecticut State Board of Labor Relations, and apply to public sector employers.  Thus all unionized employers, public or private, must respect an employee’s right to union representation in an investigatory interview.

Edward Garrity was a New Jersey municipal police officer convicted of “ticket fixing” after he was forced to answer questions in an investigatory interview conducted by the police department (which was his employer) under threat of termination.  In overturning his conviction, the United States Supreme Court held that he had been compelled to incriminate himself without being advised of his rights.  Investigations by public employers about matters with potential criminal liability must now include the ubiquitous “Garrity Warnings,” which advise employees that they do not have to participate in an investigative interview which might implicate them in a crime, and that they cannot be disciplined for refusing to be interviewed, but whatever they choose to say may be used in evidence against them.

If the employer already has sufficient information for a criminal complaint, or conversely thinks the criminal aspect is insignificant and does not intend to prosecute, a variant on the Garrity Warning may be given, which is that the employee is required to answer questions or face discipline, but that nothing which the employee says will be used in a criminal prosecution.  Private employers do not have the same constraints as the government, and so may tell an employee that failure to cooperate in an investigation, even of potential criminal wrongdoing, might result in disciplinary action.