Discharge and Discipline

The New York State Law Enforcement Misconduct Investigative Office: What Law Enforcement Agencies Need to Know

June 22, 2023

By Kristen E. Smith

In June 2020, the New York Legislature enacted Article 5, Section 75 of the New York Executive Laws, which established the Law Enforcement Misconduct Investigative Office (LEMIO). In response to the nationwide protests following the killing of George Floyd, LEMIO was created to prevent and remedy misconduct committed by officers of New York law enforcement agencies, adding a layer of accountability outside the agencies themselves. The office’s mission is to identify and investigate officer misconduct and assist agencies in improving their policies and practices. It is important to note that LEMIO is meant to supplement, not replace, existing accountability procedures where they are lacking. These changes are intended to increase transparency and accountability surrounding officer misconduct, thereby increasing public safety and trust in law enforcement as a whole.

Read More >> The New York State Law Enforcement Misconduct Investigative Office: What Law Enforcement Agencies Need to Know

Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

June 6, 2023

By Kali R. Schreiner

In a recent decision, the Second Circuit Court of Appeals overturned a district court’s ruling that an employer was not subject to the Worker Adjustment and Retraining Notification Act and New York Labor Law § 860 (the WARN Acts) when they closed a buffet restaurant and laid off over one hundred employees. In Roberts v. Genting New York, LLC, No. 21-833, the Second Circuit held that a reasonable factfinder could conclude that for purposes of the WARN Acts, the buffet was an operating unit and, therefore, Defendants were subject to the written notice requirements as prescribed by law.

Read More >> Taking a Gamble: Plant Closings and Mass Layoffs Under the WARN Act

NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

June 2, 2023

By Hannah K. Redmond and Jacqueline E. Zahn

In a recent decision, the National Labor Relations Board (the Board) returned to its earlier precedent “applying setting-specific standards” in cases involving employees who are disciplined for misconduct that occurs during activity otherwise protected by the National Labor Relations Act (NLRA). The Board announced its return to the “traditional standards” earlier this month in Lion Elastomers LCC II.[1]

Read More >> NLRB Returns to Setting-Specific Standards for Employee Misconduct Occurring in the Course of Protected Activity

New York Proposes Update to WARN Act

April 5, 2023

By Colin M. Leonard

On March 29, 2023, the New York Department of Labor announced a proposal to update the New York Worker Adjustment and Retraining Notification (NY WARN) Act regulations to provide clarification and conform to statutory changes enacted in 2021. The public comment period for the proposed regulations will remain open until May 30, 2023.

The NY WARN Act, originally enacted in 2008, and the federal Worker Adjustment and Retraining Notification (WARN) require private employers to provide employees with written notice of impending mass layoffs, plant closures and relocations.

Read More >> New York Proposes Update to WARN Act

NLRB General Counsel Releases Guidance on Board’s McLaren Macomb Decision

April 4, 2023

By Patrick V. Melfi and Gianelle M. Duby

On Feb. 21, 2023, the National Labor Relations Board (the Board) ruled in McLaren Macomb, 372 NLRB No. 58, that the mere proffer of a draft severance agreement containing broad confidentiality and non-disparagement provisions violated the National Labor Relations Act (NLRA). You can read our prior blog post outlining the details of the Board’s decision here.

Read More >> NLRB General Counsel Releases Guidance on Board’s McLaren Macomb Decision

USDOL’S Wage and Hour Division Announces Priority of Protecting Workers from Retaliation

March 16, 2022

By Subhash Viswanathan

On March 10, 2022, the U.S. Department of Labor’s Wage and Hour Division (which enforces the Fair Labor Standards Act, the Family and Medical Leave Act and other federal wage and hour laws) announced that one of its top enforcement priorities is to protect workers from retaliation for exercising their rights. The USDOL launched an anti-retaliation page on its web site and published a Field Assistance Bulletin on the subject of retaliation.

Read More >> USDOL’S Wage and Hour Division Announces Priority of Protecting Workers from Retaliation

Employers Take Notice: The NLRB, the DOL and the EEOC Are Working Together to Combat Employer Retaliation

March 4, 2022

By Nihla F. Sikkander

The National Labor Relations Board (NLRB), the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL), three federal agencies that enforce major federal labor and employment laws, are joining forces to combat employer retaliation. Employers must be aware that these federal agencies are moving forward with concrete steps to jointly coordinate efforts to take action and litigate against workplace violations and are incentivizing workers to come forward with their concerns.

Read More >> Employers Take Notice: The NLRB, the DOL and the EEOC Are Working Together to Combat Employer Retaliation

Status Update on OSHA’s Vax or Test Mandate: Supreme Court’s Decision is Pending; First Compliance Date is Here; OSHA Clarifies Additional Questions on the Mandate

January 11, 2022

It seems that change is the only constant when it comes to OSHA’s Vax or Test Emergency Temporary Standard (ETS). Here is the current status:

The Supreme Court’s Decision is Pending

On Friday, Jan. 7, the United States Supreme Court heard oral arguments regarding the ETS at a special session of the Court.1 Challengers to the ETS requested that the Court issue a stay to stop the ETS before Jan. 10, stating that the mandate was overly broad and was a question that should be left to Congress or to be decided at the state-specific level. Though one cannot predict how the Court will rule, based on their line of questioning, a majority of the justices appeared to be skeptical of the ETS with Justice Alito quoting the late Justice Scalia when he described OSHA’s interpretation as “squeezing an elephant into a mousehole.” At the hearing, Justice Gorsuch and Justice Kavanaugh focused on the Major Questions Doctrine.2 The justices also focused on whether OSHA had the authority to mandate a vaccine that impacts not only the workplace, but also employees’ lives outside the workplace, and is, to quote Chief Justice Roberts, an “out-in-the-world issue.” Additionally, the justices floated the idea of issuing a brief administrative stay until they could make a decision. Solicitor General Prelogar, appearing for OSHA, obviously disagreed and said that the Jan. 10 deadline did not pose a major burden on businesses, except for imposing mask requirements. The Court has announced that it will be issuing “one or more opinions” on Jan. 13. It is unclear if one of these opinions will be with respect to the ETS. We are awaiting the Court’s decision and will keep you informed.

Read More >> Status Update on OSHA’s Vax or Test Mandate: Supreme Court’s Decision is Pending; First Compliance Date is Here; OSHA Clarifies Additional Questions on the Mandate

Federal Court in Florida Issues Decision in COVID-19 Related WARN Case 

January 15, 2021

Worker Adjustment and Retraining Notification (WARN) litigation is gearing up in the wake of millions of COVID-19 related layoffs that took place in 2020. 

The Federal WARN Act applies to employers with 100 or more employees, and typically requires written notice 60 days in advance of a plant closing or mass layoff. The Act permits employers to reduce this notice period upon showing that a statutory exception applies. Specifically, the Act contains exceptions relating to faltering companies, unforeseeable business circumstances, and natural disasters. If an employee sues his employer for failure to provide statutorily required notice, the burden is on the employer to demonstrate that one of these exceptions applies. 

Read More >> Federal Court in Florida Issues Decision in COVID-19 Related WARN Case 

The Sound of Silence: Seventh Circuit Holds That Undocumented Misconduct is Still Misconduct

August 5, 2019

By Howard M. Miller

If you’ve had occasion to converse with a management-side employment lawyer (and somehow survived it), it seems the edict of documenting performance issues is tattooed on his/her forehead. I must confess in my own supervisor training I have warned that, in essence, “if it’s not in writing, it did not happen” (at least for purposes of trying to get a case dismissed on a motion for summary judgment). I still believe that documentation is always the safest course, but can an employer still fire an employee for a series of undocumented incidents and avoid having to go to trial when the employee disputes them? The Seventh Circuit has answered this question in the affirmative.

Read More >> The Sound of Silence: Seventh Circuit Holds That Undocumented Misconduct is Still Misconduct

NLRB Again Imposes Duty to Bargain Over Discipline Even Before Agreement on a Contract

September 15, 2016

On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline on an employee within the bargaining unit.  By doing so, the NLRB effectively reinstated its prior decision in Alan Ritchey, Inc., which had previously been invalidated by the Supreme Court in NLRB v. Noel Canning. Prior to Alan Ritchey, employers had been able to continue to impose discipline consistently with past practices while initial negotiations with a recently certified union were ongoing, and they were able to do so without providing notice and an opportunity to bargain.  Employers can no longer comfortably do so without risking a violation of the National Labor Relations Act.  Instead, employers who are engaged in negotiations with a recently certified union will need to provide the union with notice and an opportunity to bargain over any discipline that will materially alter an employee’s terms of employment (i.e., termination, suspension, demotion, etc.). However, the duty to bargain will not apply to discipline that does not materially alter the terms of employment (i.e., a verbal or written warning).  The obligation also does not apply if the employer and the recently certified union have separately agreed on a disciplinary process. Employers who are in the process of negotiating an initial collective bargaining agreement with a recently certified union should be mindful of this obligation going forward.

Monday Morning Quarterback: What Labor Practitioners Can Learn From "Deflategate"

September 14, 2015

By Thomas G. Eron

The following article was published in Employment Law 360 on September 15, 2015. Turn down the lights and roll the film on the recent district court decision to vacate the four game suspension of New England Patriots' quarterback Tom Brady.  The much ballyhooed proceeding known as "Deflategate" holds valuable lessons for all labor practitioners, regardless of whether they cheer for or against the Patriots. The Deflategate Litigation This disciplinary proceeding arose out of allegations that during the first half of the AFC Championship game on January 18, 2015, the New England Patriots used footballs that did not meet the minimum air pressure inflation standards under NFL rules.  The League conducted an investigation, led by outside counsel, Ted Wells of Paul, Weiss, Rifkind, Wharton & Garrison LLP.  As a result of the investigation, Tom Brady was found to have been “generally aware” of the actions of other Patriots’ employees in the deflation of footballs and to have failed to cooperate with the investigation.  For his misconduct, Mr. Brady was suspended without pay for four games. The National Football League Players Association appealed Mr. Brady’s suspension.  Under the parties’ collective bargaining agreement, NFL Commissioner Roger Goodell served as the arbitrator.  After the arbitration hearing, Commissioner Goodell denied the appeal and sustained the four game suspension. In an action in the U.S. District Court in New York, the NFL sought to confirm the arbitration award and the Players Association sought to vacate it.  On September 3, 2015, District Court Judge Richard Berman denied the motion to confirm, granted the motion to vacate, and vacated the four game suspension.  The NFL has subsequently appealed. It is not the intention of this article to analyze the court's decision under the Federal Arbitration Act and the jurisprudence generally limiting judicial review of labor arbitration awards, nor to evaluate the merits of the case for and against Mr. Brady’s suspension.  Rather, we will “break down the film” of the proceeding and the court’s decision, as every good coaching staff does on Monday morning, and identify four critical lessons for labor practitioners to incorporate into their game plans. Four Critical Lessons Learned 1.  Everyone on the Team Needs the Playbook. One of the principal reasons that the district court vacated the arbitration award was the court’s conclusion that Mr. Brady did not have notice of the prohibited conduct and the potential discipline. The concept of notice is fundamental to effective management of employees.  In the discipline context, the first question that is regularly asked in any review (arbitral, administrative or judicial) is whether the employee had adequate notice of the work rule or performance standard at issue and the possible consequences of the failure to meet the expectation of the rule or standard.  Establishing and disseminating clear work rules and performance expectations from the first day a player laces up his cleats is on page one of the HR playbook. The Deflategate proceeding highlights three common sub-issues on this topic.  First, the issue of notice should be analyzed from the player/employee’s point of view.  An employer that provides a handbook to its employees, but also maintains a separate policy manual with distribution limited to management staff, may have difficulty enforcing discipline against employees for violations of policies in the management manual.  We turn to Deflategate for an example.  Each year, the NFL issues to all players the “League Policies for Players,” which not surprisingly contains a rule regarding uniform and equipment violations.  The NFL also maintains a “Competitive Integrity Policy,” but that policy is only issued to team chief executives, presidents, general managers and head coaches.  At the appeal hearing, NFL Executive Vice President Troy Vincent, the author of Mr. Brady’s suspension letter, acknowledged that the investigative report was based on, and the policy against tampering with footballs was contained in, the Competitive Integrity Policy.  The Players Association argued forcefully that the Competitive Integrity Policy, which was not issued to Mr. Brady, could not properly provide a basis for discipline and the district court agreed. Second, the nature of the alleged misconduct here – tampering with equipment in a championship game and obstruction of an investigation – raises the question:  are there circumstances in which no pre-existing rule is necessary because the conduct is so obviously impermissible that proof of wrongdoing can support discipline even in the absence of a specific rule?  Of course, the answer is yes, but the application of this principle can be difficult. In Mr. Brady’s case, the application of the patently obvious misconduct principle was complicated by several factors.  For example, as to tampering, the investigation only concluded “[Mr. Brady was] at least generally aware of the actions of the Patriots’ employees involved in the deflation of the footballs and that it was unlikely that their actions were done without [his] knowledge.”  The League relied on this conclusion when issuing the initial suspension, but the Judge was underwhelmed, asserting “I am not sure I understand what in the world that means, that phrase [generally aware of the inappropriate activities of other Patriot employees].” So we must recognize that reliance on the obvious misconduct principle requires proof of such misconduct.  And, in the absence of clear proof, there is a risk that, on review, the discipline could be overturned because of ambiguities in the application of such principles. Third, the requirement of notice extends not only to the conduct at issue, but the likely consequence or discipline as well.  Some work rules lend themselves to precise discipline.  A point system for attendance violations with a progressive discipline structure based on points accrued is a classic example.  Similarly, Article 42 of the NFL’s CBA contains an extensive list of infractions and maximum penalties that a team may impose on its players. Other employers opt for a more open-ended description of the potential discipline for any violation (e.g., “up to and including termination of employment”).  In those settings, the level of discipline tends to be established over time and with experience.  Arbitrators and reviewing courts look for comparators to judge whether the employee was on notice of the potential consequences and whether the discipline imposed was consistent with prior, similar situations. Again, two aspects of the NFL’s rules and disciplinary practices were problematic for the district court.  The rule in the Players’ Policies relating to equipment and uniform violations stated:  “First offenses will result in fines.”  There was also evidence that obstruction of league investigations was an offense that warranted a fine.  In fact, in one recent arbitration, former Commissioner Paul Tagliabue, serving as the Commissioner’s designated arbitrator, stated in his award that the NFL’s practice was to fine but not suspend players for such misconduct.  In 40 years with the League, there was no record of any player being suspended for obstructing an investigation. 2.  Consistent Treatment of All Players Matters. This last point on notice reinforces another lesson:  the importance of consistent treatment for similar misconduct.  Both the Players Association and the NFL identified prior disciplinary actions and arbitration decisions to support their respective positions on the appropriateness of a four game suspension.  Judge Berman was persuaded by the Players Association’s precedent that a fine, and not a suspension, was the appropriate discipline for the asserted violations.  Former Commissioner Tagliabue’s arbitration award citing 40 years of such history was compelling to the court. So what can a new commissioner, coach, CEO or HR Vice President do to make a change -- to enforce more rigorous discipline, change priorities or enhance performance standards?  Clearly, on a prospective basis, work rules and performance standards can be modified to reflect new priorities and initiatives.  Often, collective bargaining agreements provide management with the right to establish reasonable rules with proper notice to the union and employees.  In the absence of a contractual right, such rule changes would be a subject for negotiations. When faced with a particular incident, and the opportunity to set a new precedent, the new decision maker may seek to make a subtle change based on nuanced circumstances that differentiate the present case from prior incidents.  There is also a school of thought that endorses making a substantial change to the status quo, for example a significant suspension for conduct that previously gave rise to a fine, recognizing that the action may be challenged in arbitration or on judicial review.  Even if it is overturned or reduced on review, the new management has remained true to its espoused principles.  It is also possible that such a significant change in precedent is the opening position in an anticipated negotiated resolution, which may well include a new, more rigorous standard for future cases in exchange for a compromised penalty in the present case.  Certainly, Judge Berman in the weeks before his decision, created opportunities for such a negotiated resolution of Mr. Brady's suspension, but to no avail. 3.  Calling an Audible During an Employment Proceeding Can Leave the Team Exposed. One of the uncommon elements of the player discipline procedure under the NFL’s CBA is the provision that allows the Commissioner to serve as the final and binding arbiter of discipline disputes.  Typically in a discipline arbitration, the parties select a neutral arbitrator and the employer bears the burden of proving “just cause” for the discipline based on the facts the employer had obtained through its investigation prior to imposing the discipline.  By contrast, in the NFL’s discipline appeal procedure, following the initial assessment of discipline, there is an evidentiary hearing, after which the Commissioner (or his selected designee) renders a final decision based on a preponderance of the evidence – new and old – under a standard described in the CBA as discipline “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” As a result, the specific rationale for the discipline may change based on the evidence presented at the appeal hearing.  Such was the case with Mr. Brady’s suspension.  The Commissioner relied heavily on the evidence, newly revealed at the appeal hearing, that Mr. Brady had “destroyed” his cell phone on or about the day he was interviewed by Investigator Wells and as a consequence the 10,000 text messages on that phone were no longer available.  This information was not contained in the investigative report and was not known at the time of the initial discipline.  The Commissioner found this information “very troubling” and concluded:  “there was an affirmative effort by Mr. Brady to conceal potentially relevant evidence and to undermine the investigation” and that he “willfully obstructed the investigation.”  The Commissioner also re-assessed Mr. Brady’s culpability for the tampering of the footballs by the equipment staff, based on the hearing evidence and his assessment of credibility.  He found that Mr. Brady “knew about, approved of, consented to, and provided inducements and rewards in support of” a scheme to tamper with the footballs, which constituted conduct detrimental to the integrity of the game. These changes in the rationale for Mr. Brady’s suspension, although sanctioned by the NFL’s CBA, were ruled incomplete by Judge Berman.  The District Court recognized that the Commissioner’s finding of Mr. Brady’s culpability for tampering went “far beyond” the finding of “general awareness” of others’ misconduct contained in the investigative report and the initial suspension letter.  In addressing the Commissioner’s rationale, Judge Berman held that reliance on the “broad CBA ‘conduct detrimental’ policy – as opposed to specific Player Policies regarding equipment violations – to impose discipline on Brady is legally misplaced” (emphasis supplied).  In other words, the broad authority negotiated in the CBA for the Commissioner to discipline players for conduct detrimental to the game is now, as a matter of law, reduced to sanctioning players for violations of specific player policies.  This holding of the Deflategate decision, if it stands, may prove particularly problematic for the NFL. While not directly on point, these facts should remind employers that presenting alternative, more robust explanations for their employment decisions in arbitration, or administrative or judicial proceedings can be risky.  As the Seventh Circuit has explained in the employment discrimination context:  "If at the time of the adverse employment decision the decision maker gave one reason, but at the time of trial gave another reason which was unsupported by the documentary evidence the jury could reasonably conclude that the new reason was a pretextual after-the-fact justification."  Perfetti v. First Nat'l Bank of Chicago, 950 F.2d 449, 456 (7th Cir. 1991), cert. denied, 505 U.S. 1205 (1992). 4.  Teams Can Be Penalized for Unnecessary Roughness. One final observation arises in part from a specific holding in Judge Berman’s decision and in part from its tone.  To support the suspension, Commissioner Goodell had largely looked past the precedents involving equipment tampering and obstruction of investigations, and instead had clearly and forcefully relied on the discipline imposed for a violation of the performance enhancing drug policy.  He described a steroid use violation as the “closest parallel” to Mr. Brady’s misconduct, both warranting a four game unpaid suspension – 25% of the regular season.  It plainly appears that Commissioner Goodell was making a statement to Mr. Brady and the League about the seriousness of the misconduct, which he described as an effort “to secure an improper competitive advantage” and “to cover up the underlying violation.”  It bears noting, in evaluating the appropriateness of the discipline, that there were no allegations of prior misconduct by Mr. Brady, he was the starting quarterback on the Super Bowl winning franchise, and has been described in the public press as the “Golden Boy” and, by some, as one of the 5 best quarterbacks in League history. Judge Berman flatly rejected the Commissioner’s comparison.  He described the negotiated steroid use policy as “sui generis” and opined that he could not “perceive” any comparability between steroid use and Mr. Brady’s conduct.  He quoted Commissioner Tagliabue’s arbitration decision again to the effect that a sharp change in discipline can be arbitrary and an impediment to, rather than an instrument of, change.  He also noted that Mr. Brady’s performance in the Championship game improved in the second half after the footballs were properly inflated.  While the legal issues on appeal will address whether or not Judge Berman overstepped his authority in limiting the Commissioner’s discretion to issue discipline under the CBA, the clear lesson for employers is that a wide array of circumstances matter in the evaluation of employment decisions.  An employer that acts without fair consideration of all relevant factors is like a team running a naked bootleg, both do so knowing there are significant risks. The Deflategate decision presents a strong cautionary tale for employers.  Managers who conduct workplace investigations and make employment decisions must be well-trained and thoughtful in effectuating their game plans.  They need to understand and evaluate the short run and potential long run implications before they speak or write the first time about those decisions.  Employers must also recognize that even the best game plans cannot always anticipate the reaction of arbitrators, judges and juries – the ball can take an unexpected bounce.