Probably not the most favorite part of being a firefighter is when you come under scrutiny for an act or omission of a policy or violation of some law in your community or your department and are called into the Chief’s office and notified that you are the subject of an investigation.
An investigatory interview is one in which the employer seeks to obtain information from the employee or employees which would possibly support or not support disciplinary action against the employee or to evaluate whether the claim against you or other members of your organization is valid.
If the employee reasonably believes the interview may result in discipline, the employee has certain legal rights. The employee may also have additional rights under a collective bargaining agreement.
Most fire departments have in their policy or labor agreement, a flow chart of how a disciplinary process will proceed. Having this objective process is a must to eliminate the subjective nature of an investigation so that the employer and employee can be certain of the process that will occur for each and every investigatory process in your fire department. This eliminates the subjectivity that may be found if there are different members of an organization that may conduct an investigation.
The flow would look something like this. This may not reflect the organization’s investigatory process but is a great example of one to emulate.
- The department receives a report of alleged employee misconduct.
- A full and fair investigation of alleged employee misconduct occurs; Weingarten, Garrity or other rights against self-incrimination may attach during investigatory interviews.
- If the preliminary investigation(s) results in non-sustained misconduct or a breach of policy findings, the complaining party should be contacted and informed that the matter has concluded and has been appropriately dealt with.
- Follow up with the subject of the complaint and witnesses that the issue has concluded.
- If the investigation results in a sustained breach of policy misconduct or other allegation findings, the department’s leadership must decide what type of disciplinary action is appropriate.
- When the department leadership is moving towards disciplinary action, the department must consult with the department’s HR director and/or the Department’s legal counsel, especially if the charges support adverse action against the employee such as a demotion, suspension with or without pay or termination.
- If the disciplinary action involves a demotion, suspension, termination or other financial deprivation, management offers the employee an opportunity for a Loudermill or Name-Clearing meeting, inviting the employee’s union representative to this meeting.
- If the employee declines the meeting, management makes the final disciplinary decision based upon the current available information and provides the information to the employee in writing.
- If the employee accepts the meeting, it is scheduled with the employee, union representative, human resources representative, department decision maker and any other necessary department personnel. At times, these hearings may involve an outside facilitator to conduct the hearings as to keep the decision makers out being both the judge and jury.
- After the meeting, the department leader (most likely the Fire Chief) makes the final disciplinary decision and provides that to the employee in writing.
- Remember to provide the right of appeal to the decision in a timely manner.
Considerations – Right to Work States
Many states are classified as Right to Work States and many firefighters are unrepresented and are considered at-will employees meaning you can be terminated for any reason other than for discriminatory reasons.
Right-to-work laws are based on the principle that mandatory laws requiring employees to join a union are a violation of an individual’s rights. The law takes the view that every employee has the right to decide whether they want to belong to a union or not. According to the National Labor Relations Board (NLRB), requiring someone to join a union in order to work at a place of employment violates the spirit of the right-to-work laws and individual freedoms. [i] In right-to-work states, employees who are hired by a union shop get to choose whether to join the union and pay union dues. There are approximately 27 right-to-work states including the Territory of Guam.
Under the National Labor Relations Act (NLRA), no one can force or otherwise compel a new or existing employee to join, stay or leave the union against their will. Employees who decline to join the union are under no obligation to pay union dues, although they are permitted to enjoy the benefits that are obtained by the union through the collective bargaining process.
A Right to Work law guarantees that no person can be compelled, as a condition of employment, to join or not to join, nor to pay dues to a labor union. Section 14(b) of the Taft-Hartley Act affirms the right of states to enact Right to Work laws. [ii]
This creates a class of at-will employees in the fire department that is not represented by a bargaining agreement. At-will employment describes a working environment in which employers are free to terminate employees at any time, without cause, explanation, or prior warning, provided it does not violate state and federal anti-discrimination laws. Similarly, employees can quit a job at any time without reason or notice.[iii]
Considerations – Collective Bargaining States
For those that are in collective bargaining states, there is a more liberal attitude towards collective bargaining that is codified in your state law. For example, in my state, Washington, collective bargaining is codified in the Revised Codes of Washington (RCW 41.80), which is the state’s collective bargaining law.
There are many other collective bargaining states that union membership provides protection of employees during investigations and are contained within the Articles of the collective bargaining agreement (CBA). SeeRegulation of Public Sector Collective Bargaining in the States. [iv]
Not all industry sector employees are entitled to collectively bargain such as exempt or confidential employees.
Firefighter Bill of Rights [v] California and Louisiana [vi] [vii]
Other states including Florida and Virginia have codified the Firefighter Bill of Rights (FFBOR) and there are several other states incorporating the principles of those protections found in this document.
FFBOR concerns the employment rights of public agency firefighters in the performance of their official duties relating to political activity (§ 3252), investigation and interrogation (§ 3253), punitive action (§ 3254), administrative appeals (§ 3254.5), personnel records (§ 3255-3256.5), lie detector tests (§ 3257), financial disclosures (§ 3258), searches of lockers and personal spaces (§ 3259), and authorizes injunctive relief, damages, a civil penalty and attorney’s fees for malicious violations, and confirms availability of sanctions for litigants brining bad faith or frivolous civil actions (§ 3260).
There are many other important legal protections for firefighters outside of the FFBOR that stand alone, such as certain workplace injury and illness presumptions and leaves (e.g. Lab. Code §§ 3212.1, 4850) and employer obligations to indemnify and defend public employees (Gov. Code § 825), or that work in tandem with the FFBOR, such as constitutionally guaranteed due process rights and rights against compulsory self-incrimination, state or local civil service protections, and collective bargaining rights (e.g. Gov. Code §§ 3500-3511, 3512-3524, 19570-19589). The Firefighters Procedural Bills of Rights Act (FFBOR) applies to firefighters employed by public agencies irrespective of rank. (Gov. Code § 3251.)
For additional information see – https://firefightersbillofrights.com/coverage/
Your rights during an Investigative Process
Weingarten Rights [viii]
Employees who are represented by labor unions, whether in the public or private sector have the right to have union representation for an investigatory interview where the employee reasonably believes that disciplinary action against him or her may result.
Although technically, the right arises only in situations where the employee requests representation, it is usually a good idea to offer the employee the option of having union representation at the meeting to avoid future questions over the process. In addition, a collective bargaining agreement could provide more protections to the represented employee than that set out in Weingarten.
For example, the agreement could require an employer to inform the employee regarding his or her right to representation.
Some provisions include Union representation is appropriate during:
- Investigatory interviews
- Loudermill meetings (required when the employee is asked questions during the meeting)
- Name-Clearing meetings (required when the employee is asked questions during the meeting)
- Non-disciplinary medical termination meetings
- Other appropriate meetings
When an investigatory interview occurs, the employee may request union representation before or during the interview. Weingarten rights do not attach until the actual occurrence of the interview.
a. The employee has a right to contact his or her representative but not to unreasonably delay the hearing. If the employee’s choice of the representative is not readily available, a different representative should be contacted. The employee has a right to a representative but has no right to any one particular representative.
b. The employee does not have the right to a private attorney. If the employee requests to have an attorney present, simply explain that this is a workplace meeting regarding a personnel issue and the department does not allow attorneys in meetings to address such issues.
Weingarten rights are based on the collective interests of all of the employees in the bargaining unit. However, management has no duty to bargain with the union representative at the investigatory interview, Loudermill meeting, Name-Clearing meeting or non-disciplinary medical termination meeting.
The employee has the right to “meaningful participation” by his or her union representation. The right to meaningful representation means that management cannot preclude an employee from consulting with his or her union representative before commencing an investigatory interview. It also means that a union representative cannot be required to sit silently by. Once management starts asking questions of the employee, it cannot preclude the union representative from raising valid objections to the nature of the questions or from advising the employee of any privileges he/she has a right to assert.
Conversely, management may ask an employee to give his or her version of events without interruption by a union representative, and can preclude an employee from consulting with the union representative before answering each question. Management may require the employee to answer the questions posed and preclude the union representative from answering for the employee.
Exclusions to Weingarten:
- Informing an employee of a previously made disciplinary decision
- Counseling and correction
- Work orders and instructions
- Questioning by authorities other than the employer
Skelly Hearings [ix]
A Skelly hearing gets its name from a California Supreme Court case called Skelly v. State Personnel Board (1975) 15 Cal.3d 194. The Skelly court held that a civil service or public sector employee has a property right to his job and could not be deprived of it without due process.
Although called a hearing, a Skelly hearing is better described as a pre-disciplinary due process meeting. This procedural meeting ensures that when an employee is facing disciplinary action, the accused employee is informed of the allegations, has an opportunity to refute the allegations, and has an opportunity to mitigate the allegations or rehabilitate their standing with their employer before any actual disciplinary action. It is a preliminary meeting that must take place in the case of an employee’s termination, demotion, suspension, reduction in pay, or transfer with an accompanying loss in pay. [x]
(See also https://www.edcea.org/skelley-hearing for the procedural processes related to a Skelly Hearing from the El Dorado County Employees Association)
Garrity Rights [xi]
Garrity rights apply to employees in the public sector, whether or not the employee is represented by a labor union, who are compelled to make a statement under threat of possible loss of his/her job. The employee’s statement cannot be later used against the employee in a criminal prosecution. However:
- Compelled statements made during a workplace investigation may be against another employee or individual.
- Compelled statements made during a workplace investigation may be used in a civil suit.
Garrity Requirements: The Garrity Rule provides that an employee may be disciplined (including termination) for insubordination for failure to answer a question concerning criminal activity during an administrative interrogation but only where:
- The employee has been ordered to answer the question and is compelled by the threat of discipline to respond; and
- The questions asked are specifically, directly and narrowly related to the employee’s duties or fitness for duty.
Truthfulness required: Where the employee voluntarily answers investigatory questions, or does so under the compulsion of Garrity, the answers must be truthful or the employee may be subject to discipline, including termination, for dishonesty.
Garrity admonishment: Where criminal activity is the workplace conduct being investigated, the investigator should contact human resources or the prosecuting attorney’s office for consultation. The investigator may be advised to read a Garrity admonishment to the employee who is under investigation.
Kalkines Warnings [xii]
A federal government employer may conduct an administrative investigation to determine misconduct of an employee at the same time a criminal investigation of the employee is ongoing. The same facts that may lead to a criminal prosecution may be the same facts needed for a disciplinary action.
In Kalkines v. the United States, 473 F.2d 1391, an employee who worked for U.S. Customs was faced with being questioned concerning a potential disciplinary matter (alleged taking of bribes) at the same time he was under federal criminal investigation for the same matter. Faced with potential prosecution, he chose not to answer questions from his employer. He was fired for refusing to answer. The Court held the employee could not be discharged for invoking his Fifth Amendment right against self-incrimination.
However, in circumstances where an employee has invoked his 5th Amendment right against self-incrimination, the employer can decide to inform the employee that the employee’s participation in the investigation will not be used in a criminal case against the employee. Therefore, if the employee then fails to give evidence, he may be discharged. However, the employer must have received confirmation from the applicable prosecutor that criminal action is not contemplated and the employee has thereby been granted a waiver from prosecution.
Pre Disciplinary Due Process
Loudermill Meeting
If there is an adverse finding against you, you are entitled to a Loudermill meeting if your employment is terminated only for cause and have a constitutional property interest right to due process, whether or not the employee is represented by a labor union.
- At-will workers have no right to a Loudermill meeting (probationary, provisional, term-limited temporary, short-term temporary, non-career service appointed and contract workers).
Firefighters not on probation subject to disciplinary action for cause, have a constitutionally protected property right in continued employment. This means that prior to the deprivation of employment (i.e., termination) or deprivation of compensation under employment (e.g., suspension, step reduction, or demotion) firefighters are entitled to certain due process rights.
Firefighters who are subject to layoff have a constitutionally protected property right in continued employment. This means that prior to the deprivation of employment (e.g., layoff) or deprivation of compensation under employment (e.g., reduction in FTE) firefighters are entitled to notification of their potential lay off and an opportunity to be heard. The opportunity to be heard is via a Loudermill meeting or written submittal. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985) and Levine v. City of Alameda, Nos. 06-15480 and 06-15481, D.C. No. CV-04-01780-CRB (9th Cir. May 13, 2008).
The fundamental requirement of due process is that an individual be given such an opportunity before being deprived of any significant property interest. Accordingly, the essential Loudermill due process elements are:
- Notification must be in writing of the proposed discipline together with a summary explanation of the evidence; and notification of the employee’s opportunity to be heard on the matter.
- An opportunity to respond to the proposed action and its factual basis. An employee is not entitled to a full evidentiary hearing provided that the required steps are followed before discipline is imposed. Informal conferences can satisfy the Loudermill requirements.
The purpose of the Loudermill meeting is to allow the employee to present his or her side of the story and any mitigating or previously unknown circumstances prior to the imposition of proposed discipline. The period between the notice and the scheduled meeting should be of sufficient duration to enable an employee a reasonable period of time to prepare for the meeting. An employee is not required to attend the meeting. The employee must be given the opportunity to have the meeting and notified that if he or she fails to attend, a decision will be made and imposed based upon the current available information.
Name Clearing Meetings
Firefighters have a constitutional liberty interest right to due process, including all at-will and career service employees, whether or not the employee is represented by a labor union.
Firefighters who are subject to discipline accompanied by the disclosure of stigmatizing information have a constitutionally protected liberty interest in protecting their reputation. This means that, prior to the publication of stigmatizing information, all firefighters are entitled to certain due process rights. The individual should be given such an opportunity before being deprived of any significant liberty interest. If a firefighter is already being provided a Loudermill opportunity, a separate Name-Clearing meeting is not required because a single meeting will satisfy the due process requirement for both.
The essential Name-Clearing due process elements are:
- Notice in writing, describing the information that is proposed to be placed in the employee’s personnel file; and notification of the employee’s opportunity to be heard on the matter.
- An opportunity to respond to the proposed action. An employee is not entitled to a full evidentiary hearing provided that the required steps are followed before the information is placed in the employee’s personnel file. An informal meeting with the employee satisfies the requirement. The purpose of the meeting is to allow the employee to present his or her side of the story and any mitigating or previously unknown circumstances prior to the insertion of the stigmatizing information in the employee’s personnel file.
- The period between the notice and the scheduled meeting should be of sufficient duration to enable an employee a reasonable period of time to prepare for the meeting. An employee is not required to attend the meeting. The employee must be given the opportunity to have the meeting and notified that if he or she fails to attend, a document outlining the disciplinary action will be placed in the employee’s personnel file. Ensure that the employer Department respond to the employee with about the results of the meeting.
Stigmatizing information is that which impairs the employee’s reputation for honesty or morality. Simply placing a document in the employee’s personnel file amounts to publication of stigmatizing information if the document includes information as to the employee’s misconduct.
In Washington State for example, pursuant to WAC 296-126-050(3), within ten days of a written request from the former employee, the public employer must provide a statement of the reasons for the employee’s termination. A copy of that letter stating such reasons will be kept by the public employer. Therefore, even if you have not placed any stigmatizing information in the employee’s personnel file to date, if that letter includes stigmatizing information then you must offer the employee a Name-Clearing meeting.
Examples of what “stigmatizing information” include:
- Lying on an employment form
- Dishonesty, including theft and lying
- Taking or selling illegal drugs
- Prostitution
- Sexual harassment
- Accepting kickbacks or favors as a public employee
Examples of what “stigmatizing information” does not include:
- Attendance issues
- Tardiness
- Horseplay
- Disputing supervisory authority
- Performance issues, including incompetence
The process is likely required for employees who resign before an investigation is complete. Absent unusual circumstances, investigations should always be completed, even if employee being investigated resigns. Therefore, it is advisable to offer those former employees the opportunity to participate in a Name-Clearing meeting when the investigation is complete and the investigatory documents contain stigmatizing information.
Finally, discipline requiring these levels of protection usually are at the end of several corrective actions by the department towards an employee. My best advice to avoid discipline if possible, but if that is the issue facing you and the department, there is an obligation on both sides to offer and to take advantage of the protections afforded to the firefighter.
Endnotes
[i] Right-to-Work States: What Employers Should Know [Updated for 2021] (indeed.com)
[ii] https://nrtwc.org/facts/right-work-mean/
[iii] https://www.indeed.com/hire/c/info/at-will-employment-what-is-this-exactly
[iv] https://cepr.net/documents/state-public-cb-2014-03.pdf
[v] https://firefightersbillofrights.com/statute/
[vi] https://law.justia.com/codes/louisiana/2012/rs/title33/rs33-2181/
[vii] https://firefightersbillofrights.com/statute/
[viii] NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975)
[ix] Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
[x] https://www.unlocklegal.com/blog/what-is-a-skelly-hearing/
[xi] Garrity v. New Jersey, 385 U.S. 493 (1967).
[xii] Kalkines v. the United States, 473 F.2d 1391
