Best Employment Practices to Avoid EPLI Claims

1. Best Employment Practices to Avoid EPLI Claims Presented by:Morin I. Jacob

2. Agenda • Section 1 – FBOR Application • Section 2 – Effective Hiring & Background Checks • Section 3 – Effective Supervision and Performance Evaluations • Section 4 – Proper Investigations • Section 5 – Properly Imposing Discipline • Section 6 – Reporting Claims & Litigation

3. Section 1 – FBOR Application

4. Employees Covered by FBOR • Firefighters • Not specifically defined by FBOR- Gov’t Code § 3251(a). • “…any firefighter employed by a public agency, including, but not limited to, any firefighter who is a paramedic or emergency medical technician, irrespective of rank.”

5. Employees Not Covered • Employees Not Covered • Probationary firefighters • Probationary promotions? • Arson investigators who are peace officers • Regularly assigned to arson-investigating unit, or • Primary duty is arson investigation • Penal Code §§ 830.37(a), (b) • Inmate firefighters • Volunteer firefighters

6. Section 2 - Effective Hiring And Background Checks

7. Background Checks • Why conduct them? • Applicants exaggerate • Applicants cover up important gaps or omit problem experiences • Applicants manipulate employment dates • In some cases, the law requires it

8. Background Checks • Internet searches • Google • Megan’s Law website • Social Media • 70% of employers use social media to research candidates. (source: careerbuilder.com) • Labor C ode section 980 • Reference checks

9. Internet Searches • Options if your agency conducts online reference checks: • Provide notice; or • Access without notice but give applicant the opportunity to respond; or • Access without notice and do not provide an opportunity to respond.

10. Internet Searches • Recommendations: • Verify that the information found is true and reliable; • Only consider information that relates to the applicant’s ability to perform the job; and • Only consider information that could legally have been elicited from the applicant during an interview.

11. Reference Checks • A comprehensive, signed, written waiver and authorization is essential to any successful reference check.

12. Section 3 – Effective Supervision and Performance Evaluations

13. 3 Keys to Effective Supervision • Communication • Evaluation • Discipline (last resort)

14. Effective Communication • Concrete, direct, accurate. • Focus on conduct, not person. • Respectful, constructive tone. • Explain impact of conduct on agency/public service. • Communicate expectations and strategies to achieve them.

15. Make a Record • Make a record – memories fade and may need as proof later on (progressive discipline, litigation) • Notes • Meeting log • Memo or email to employee

16. Performance Evaluations • Importance of performance evaluations: • Creates official agency record of performance. • Puts employee on notice of agency’s view of his/her performance. • Also important during probationary period • Tool for developing employees. • Progressive discipline • Not discipline but provide notice to EE • Litigation defense.

17. Performance Evaluations • Ongoing process. • No surprises. • Covers entire review period. • Identifies positive and negative aspects. • Provides specific examples. • States measurable goals and benchmarks that can be assessed the following year.

18. 7 Deadly Sins of Performance Evaluations • Not doing them at all. • Doing them late. • Not citing examples. • Not accurately assessing performance. • Not following agency/rules guidelines re evaluating performance. • Watering down criticism. • Mentioning specific instances that you never previously discussed with the employee (deadliest!!).

19. Section 4 – Proper Investigations

20. Investigations • Starting an Investigation – Status of the Subject Firefighter: • Administrative leave. • Paid or unpaid?

21. Investigations • Selecting an Investigator • Selection criteria: • Rank; • Neutrality; • Disposition; • Training. • MUST be trained in FBOR. • Complexity of issues: • Outside investigator may be better if issues are complex or legal or the investigation involves a high ranking firefighter. • Clearly delineate the role of the investigator.

22. Statute of Limitations • One Year Statute of Limitations • Gov’t Code § 3254(d). • Starts with discovery by “employing fire department”. • Ends with notification to firefighter of “proposed disciplinary action.”

23. Interrogations • Gov’t Code § 3253 is FBOR’s interrogation statute. • When does it apply? • Firefighter is under investigation. • Contact may lead to punitive action. • Does NOT apply to routine or unplanned contact. • CAUTION: This is very gray area!

24. Interrogations • Subject Firefighter Has Right to Representation – Gov’t Code § 3253(i) • Right is subject to reasonableness limitation- Upland Police Officers Assn v. City of Upland (2003) 111 Cal.App.4th 1294. • The role of the representative is to facilitate, not disrupt, the interrogation.

25. Interrogations • When Should an Interrogation be Scheduled? Gov’t Code § 3253(a). • Strategy decision • At a reasonable hour • On duty • Firefighter entitled to reasonable notice

26. Interrogations • Who Else May Attend? – Gov’t Code § 3253(b). • No more than two interrogators. • Legal counsel. • No Threats. • The firefighter under interrogation shall not be subjected to offensive language or threatened with punitive action. • Gov’t Code § 3253(e)(1).

27. Interrogations • Recording the Interrogation – Gov’t Code § 3253(g). • Best practice is to record; best practice is to get accurate record of interview. • Firefighter has right to record as well. • Include in written notice of interrogation. • Avoid going on and off tape. • Transcribe the interrogation if discipline is contemplated. • Consider using CSR for serious discipline.

28. Pre-Interrogation Notice • Information that Must be Provided to the Firefighter Prior to Interrogation: • Name and rank of person in charge. • Who will conduct Interrogation. • Others present. • Nature of the investigation: • Date of action under investigation. • Factual allegation(s) of misconduct. • Rules potentially violated. • Recording of firefighter’s own prior interrogation, if any.

29. Interrogations • Criminal Misconduct: • Gov’t Code § 3253(h). • If it is contemplated that a firefighter may be charged with a criminal offense, Mirandize.

30. Interrogations • Criminal Misconduct: • If firefighter does not waive Miranda rights, employer must provide employee with a written grant of immunity from criminal prosecution to compel the firefighter to respond to incriminating questions. • Gov’t Code § 3253(e)(1). • Use immunity is probably sufficient.

31. Investigation Report • Maintaining the Report • Firefighter has a right to see and sign the report before it is placed in file – Gov’t Code § 3255. • Firefighter may submit written response within 30 days of entry in file – Gov’t Code § 3256.

32. Section 5 –Properly Imposing Discipline

33. Types of Employees • Probationary • At Will • Permanent/For Cause

34. Importance of Discipline • Why discipline? • PERFORMANCE • Last motivational tool. • If doesn’t result in improved performance, it’s a tool to separate employee. • MISCONDUCT • Investigation is complete and there are sustained findings. • Now, agency must determine appropriate penalty.

35. Basic Discipline Rules Common Types of Progressive Discipline: • Verbal/Written Reprimand. • NOTE: Verbal/Written Counseling is NOT discipline. • Suspension. • Reduction in Pay. • Demotion. • Termination

36. Steps Leading to Discipline • Determine what rules implicated. • Conduct investigation. • Determine appropriate penalty. • Provide due process.

37. Basic Discipline Rules • Discipline must be: • Established and supported by provable facts. • Usually preponderance of the evidence standard. • Proportionate (penalty fits misconduct). • Total personnel history of EE should be considered. • Consistent (agency treats similar misconduct the same for all employees).

38. Factors to Consider • How solid is the evidence supporting findings? • What is impact of conduct on agency? • Was the employee on notice of agency expectations/rule violated? • Is the rule that was violated clear? • Is the rule that was violated evenly applied?

39. Factors to Consider • Are there mitigating factors? • No prior discipline over long tenure? • Stressors in personal life? • Are there aggravating factors? • Repeat offender. • Prior discipline, counseling, perf. evals. • Employee is a supervisor. • Employee trained (e.g., harassment) and does it anyway.

40. Best Practices for the Pre-Discipline (Skelly) Process • The Skelly Notice (Notice of Intent) • The Skelly Meeting • Final Notice of Discipline • Once final decision on discipline is made, the Department has 30 days to notify the employee of that decision (Gov. Code § 3254(f)). • Date of discipline to be imposed must be at least 48 hours after service of final notice.

41. Alternatives to Discipline • Performance Improvement Plan (PIP) • Can be established at any time as part of or in lieu of discipline. • Often necessary prior to disciplining an officer with performance issues. • Needs to be in writing, with specific guidelines, objectives, and timelines. • Critical to follow through and document outcome of PIP.

42. Alternatives to Termination • “Last Chance” Settlement Agreement and Stipulated Discipline • Best to explore after Skelly meeting, but before issuance of Final Notice of Discipline. • Have the employee’s labor representative or attorney involved in discussions and signatory to any agreement. • Structure alternative as stipulated discipline in exchange for waiver of right to post-discipline appeal. • Should also try to negotiate general waiver and release.

43. Alternatives to Termination • Resignation in Lieu of Termination • The law views resignation as a contract with offer and acceptance. • Results in loss of right to post-discipline appeal. • Must be voluntary and in writing. • Should be accepted immediately - in writing. • IMPORTANT: Should also try to negotiate general waiver and release.

44. Section 6 – Reporting Claims And Litigation

45. You Have Been Sued – Insurance Issues General Best Practices: • Know when and how to report a claim • Know who to call when lawsuit has been served 

46. You Have Been Sued – Insurance Issues • Understand Coverage • Is there primary insurance coverage for the causes of action and damages alleged? • What claims or damages, if any, are excluded from coverage • Does the policy cover arbitration in addition to civil lawsuits? • What is the self-insured retention? (determines out of pocket costs) • Understanding a reservation of rights letter  

47. Who Is In Charge of the Litigation? • Understand the role and objectives of each stakeholder in the litigation: • Board • Fire Chief • HR • Individual defendants • Insurance Company • Defense Counsel • Who is in charge? • Keep control group small and under control • Maintain attorney-client privilege

48. Communication Strategy • Develop strategy for communicating with community • Consider use of PR firm • Develop talking points • Community will ask about litigation at Board meetings • Media requests will come in • Emphasize District’s core values in messaging

49. Time Commitment for Litigation • Significant time commitment required • Document and email searches • Witness preparation for depositions and trials • Regular strategy meetings • Mock juries • Trial attendance and publicity • Can go on for years • Institutional distraction from mission • Emotional toll

50. Settlement Considerations • Reality check: over 95% of all cases settle • Settlement is the only way to completely control the outcome • Mediation is usually required