Progressive Discipline

Question – My department is disciplining me for a charge that an alleged comment on the training ground offended a probationary firefighter. The charge was that I was “too tough” on the candidate requiring him to repeat certain basic firefighter skills that he had a hard time completing. The alleged comment was related to his performance and not directed as him as a firefighter. The penalty assessed by the department was 15 days off without pay, a letter of reprimand and I have to take a “leadership” course at the expense of the department. We have a progressive discipline policy, but the department jumped to the nuclear option. My personnel file does not have any critical evaluations or discipline records. I am a long term employee of my department. I think they are trying to fire me to make room for younger firefighters.

Response – Progressive discipline is designed to improve the conduct and behavior of a particular firefighter, protect other firefighters from bad behavior or dangerous practices of the offending firefighter and protect the department.

There must be Policies outlining progressive discipline as the department would have a difficult time in enforcing a certain behavior if there is not a policy outlining the behavior the department wants you conform with and penalties if there is a violation.

Many departments have clear Policies on discipline ranging from verbal warning to termination. In a progressive discipline environment, the department can jump to a greater penalty if the behavior or conduct warrants such an escalation of the discipline process. The Policy will outline the details of the investigative process if there is a repeat of the offensive behavior and how the outcome will be used in greater penalties directed at the firefighter.

Progressive discipline ranges from a verbal warning (i.e. don’t do that again) to a verbal warning with documentation (i.e. you were instructed not to do that again, you did it again now there is documentation of the policy infraction). Discipline documentation must be entered into the firefighters personnel file for future reference if moving to the next phase of the discipline process. If there are additional policy violations, the penalties become greater to include suspension, demotion or termination.

Public employees have certain constitutional rights that apply in their employment that may not apply to private employees. Firefighters have certain rights during these procedures especially if the discipline involves suspension, loss of pay or rank or termination. The firefighters have a right of representation generally by a union representative or other individual if you are in a right-to-work state. Representation has been guaranteed under several federal laws. The right of employees to have union representation at investigatory interviews is found in a 1975 U. S. Supreme Court case NLRB vs. Weingarten, Inc. 420 U.S. 251. These rights have become known as the Weingarten Rights. Employees have Weingarten Rights only during investigatory interviews occurring when a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Employees do not have the right to union representation if the meeting is only to tell them about discipline that has already been decided or to give other direction.

Another protection is called Garrity Rights. In Garrity v. New Jersey 385 U.S. 493 (1967), the Supreme Court held that statements obtained in the course of an investigatory interview under threat of termination from public employment could not be used as evidence against the employee in subsequent criminal proceedings. If, however, you refuse to answer questions after you have been assured that your statements cannot be used against you in a subsequent criminal proceeding, the refusal to answer questions thereafter may lead to the imposition of discipline for insubordination. Further, while the statements you make may not be used against you in a subsequent criminal proceeding, they can still form the basis for discipline on the underlying work-related charge.

Finally, a Loudermill hearing is part of the "due process" requirement that must be provided to employee prior to removing or impacting the employment property right (e.g. imposing severe discipline). The purpose of a Loudermill hearing is to provide an employee an opportunity to present their side of the story before the employer makes a decision on discipline as noted in Cleveland Board of Education v. Loudermill 470 U.S. 532  in which the United States Supreme Court held that non-probationary civil servants had a property right to continued employment and such employment could not be denied to employees unless they were given an opportunity to hear and respond to the charges against them prior to being deprived of continued employment. Prior to the hearing, the employee must be given a Loudermill letter, specific written notice of the charges and an explanation of the employer's evidence so that the employee can provide a meaningful response and an opportunity to correct factual mistakes in the investigation and to address the type of discipline being considered.

California and other states has codified a Firefighter Procedural Bill of Rights (http://www.firefightersbillofrights.com/statute/) defining the rights of a firefighter charged with policy violations with provisions and protections as noted above. Other states such as Florida, Louisiana, Virginia and Illinois to name a few providing similar procedural protections for firefighters who are being disciplined.

Conclusion – in this case, the department has a certain obligations to the firefighter to thoroughly investigate the allegations with an unbiased investigator, review of the firefighter’s personnel record for other policy or rule infractions and apply a reasonable and fair penalty as outlined in the progressive discipline policy. Many times the labor contract will have negotiated provisions protecting the firefighter’s rights as well. It is important the department abides by their own rules and regulations to change certain behaviors of their firefighters.

The issue of attempting to eliminate certain older firefighters by abusing the discipline policy deserves its own article, but the short answer it is illegal for an employer to select certain older employees for termination due to their age under the Age Discrimination in Employment Act of 1967.

Sample Discipline Policy. See:

http://www.fireengineering.com/content/dam/fe/online-articles/docum...