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HOW DISCIPLINE AND DISCHARGE OF PUBLIC SECTOR EMPLOYEES DIFFERS FROM THAT OF PRIVATE SECTOR EMPLOYEES

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HR professionals and lawyers in West Virginia know that our State is an at-will employment state, meaning you can discharge an employee for a good reason, a bad reason, or any reason at all, as long as it is not done for an illegal purpose (e.g., discrimination, retaliation, or in contravention of some public policy).  While the at-will employment doctrine is alive and well in the private sector in the State (in some form or another), the same is not true for public employees. Many public employees are afforded additional protections in the areas of discipline and discharge that private sector employees simply are not afforded absent a collective bargaining agreement, an employee-friendly handbook, or other contract.  Whether public employees are at-will employees or have this protected status depends upon how they are classified and under which statutory scheme they are employed.  This post will generally cover what additional protections certain public employees are afforded that their at-will counterparts in both the public and private sectors are not. 

Why the Extra Protections?

The Legislature has recognized the State’s interest in attracting employees with the highest abilities and integrity.  In recruiting and retaining such employees, it has decided to grant these employees a “property interest” in their employment.  This “property interest” means that public employees have an entitlement to continued, uninterrupted employment absent good cause shown by the employer.

What are the Protections Afforded to Public Employees?

a) Discipline

  • Public employers must have “good cause” or “just cause” to administer discipline to their protected employees. In determining whether “good cause” is present, an employer should consider the following:
  • Are the entity’s policies, rules, expectations, and consequences clearly communicated and understood by the employee?
  • Are the policies, rules, expectations, and consequences consistently enforced for all employees in a similar position?
  • Was there an investigation into the violation before discipline was administered?Because public employees who are afforded these extra protections have the right to challenge discipline imposed by the employer, it is important that there be clear expectations for behavior and job performance, consistency in application of discipline, and evidentiary support for disciplinary decisions. Clear, consistent documentation of performance or behavioral issues is also a best practice in the event that discipline is ever challenged by the employee.


b) Discharge

As with discipline, these protected employees may only be discharged for “good cause” or “just cause.” Furthermore, these employees must be afforded notice of their discharge, containing the reason for the discharge, and must be presented the opportunity to rebut the discharge. The type of notice (i.e., written or verbal) and opportunity to protest the discharge varies depending on what type of employee is being discharged (e.g., civil service employee, teacher, higher educational employee, police officer, or other). The advice set forth in the “Discipline” section above applies to discharge situations as well. It is crucial, in addition to providing notice and an opportunity to respond, that the employer have clear expectations for behavior and job performance, consistently apply discipline to its employees, and have evidentiary support for the decisions to discharge the employee.

c) The Public Employees Grievance Board

In addition to being afforded notice of discharge or discipline and access to a hearing, public employees (except members of the West Virginia State Police) may also file a grievance with the Public Employees Grievance Board to challenge any alleged violation, misapplication, or misinterpretation of the statutes, policies, rules, or written agreements applicable to the employee, including claims for wrongful discipline and discharge. See W. Va. Code §6C-2-1 et seq. It is important to note, however, that even “at-will” public employees may take advantage of the grievance process. The intent of this process is to provide employees a streamlined process for hearing their claims without having to resort to the sometimes (read: usually) lengthy and expensive civil litigation process. The grievance process has three levels. Level One is a hearing or conference before the chief grievance administrator for the entity. Level Two is mediation between the parties. Level Three is a hearing in front of an Administrative Law Judge employed by the Public Employees Grievance Board.A grievance must originally be filed by the employee within 15 business days of the grievable event. In the written grievance, the employee will request either a Level One hearing or conference which must be held within 10 (for a conference) or 15 (for a hearing) days unless otherwise agreed to by the parties. After the Level One hearing or conference, the chief administrator issues an opinion within 15 days. The employee may then appeal the matter to Level Two. If the Level Two mediation is unsuccessful, then the employee may petition for a Level Three Hearing. If the parties agree, or if the employee has been discharged, suspended without pay, demoted, or reclassified resulting in the loss of compensation or benefits, the employee may skip Levels One and Two and proceed directly to Level Three. Either party may appeal the Level Three decision to the Circuit Court of Kanawha County if the decision: (1) is contrary to the law or a lawfully adopted rule or policy of the employer; (2) exceeds the administrative law judge’s statutory authority; (3) is the result of fraud or deceit; (4) is clearly wrong in view of the evidence or record as a whole; or (5) is arbitrary or capricious or characterized by an abuse of discretion.

Employees may be represented by counsel or by other representatives throughout this process. Any expenses incurred during the grievance procedure shall be borne by the party incurring the expenses. Any expenses incurred by the grievant in appealing the Level Three decision to the Circuit of Kanawha County, or the circuit court’s decision to the West Virginia Supreme Court of Appeals, where the grievant substantially prevails, are recoverable against the employer and will be set by the court.

Conclusion

Navigating HR decisions in the public sector requires awareness of statutory and regulatory requirements and knowledge of a grievance process which are typically not present in the private sector.  However, good HR practices in both sectors are not so different.  Having clear expectations and rules for your employees, consistency in application of those rules and in administering discipline, and having clear, articulable reasons and evidentiary support for discharging or disciplining employees are all solid practices no matter in which sector you find yourself.

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