Public sector employee supervision is complex and challenging.  Supervisors must exercise judgment and discretion, but must be aware of limitations on authority.  State and federal laws impose many of those limitations.  Rules, policies and ordinances adopted by the agency, and collective bargaining agreements, raise other limitations.  The duty to meet and confer over changes to conditions of employment also limits supervisors’ discretion.

This workbook discusses supervisors’ discretionary rights and legal obligations, with particular focus on the unionized workplace in which employees are represented by an employee organization in their relationship with the employer.  It is imperative that supervisors understand management rights – and the distinct limitations on that concept – as well as collective bargaining, effective communication methods, disciplinary due process applicable to public employees, and appropriate techniques for responding to grievances.  In our experience representing public agencies, these issues present the greatest challenges faced by supervisors in carrying out their job responsibilities.

Topics Include:

• The Discretion to Manage
  • Management Rights Clause
  • The First Line Supervisor’s Role
• Management Rights Doctrine
  • Management’s Right to Operate Efficiently
  • Management’s Communication with Employees About Union Membership
  • Management’s Right to Discipline
• Protected Union Activity and Organizing
  • Achieving Majority Support
  • Permissible vs. Unlawful Activity During Organizing
  • Union and Employee Rights Upon Recognition
  • Union Responsibilities
• An Employee’s Right to Representation
  • Representation in an Investigatory Interview (Weingarten Rights)
  • Representation in a Grievance Meeting
  • Representation in an Interactive Process Meeting
  • Right to Refuse Membership
• Labor Negotiations and the First-Line Supervisor
  • The Labor Negotiations Process
  • Enforcing the Labor Agreement: First-Line Supervisors
  • The Relationship Between Supervisor and Union Representative
• The Grievance Process
  • What is a Grievance?
  • What is a Grievance Procedure?
  • Grievance Procedures Require Support and Commitment to Be Successful
  • Checklist on How to Avoid Grievances
  • Processing the Grievance
  • Important Follow-Up Steps After the Grievance Meeting
  • The Written Response to the Grievant
  • The Appeal and Arbitration Process
  • Preparing for the Arbitration Appeals Hearing
  • Checklist for Testifying as a Witness
  • Criteria Used by Arbitrators in Interpreting Agreement Language
  • Effect of Binding Arbitration
• Issues and Challenges
  • Introduction
  • Grievance Issues

Most California public employees have what is known as a constitutionally protected “property” interest in continued employment giving rise to their rights to pre-discipline and post-discipline “due process.” At-will employees, however, are not vested by their public employer with a property interest in continued employment and serve at the “will” or “pleasure” of their employer. At-will employees tend to be high-level managers, department heads, executives, probationary employees, seasonal employees, and part-time/temporary employees.

This workbook explores issues related to at-will employees and serves as a helpful desktop reference for understanding the unique rights and benefits afforded to these employees. Specifically, this workbook discusses designation of at-will status, the rights of at-will employees, management’s authority in dealing with at-will employees, and how to avoid litigation relating to the discipline and termination of at-will employees.

This workbook also discusses issues regarding independent contractors or contract workers. Typically, these workers provide skilled services to a public agency pursuant to a contract either between the agency and the worker or between the agency and an outside employment firm. Specifically, this workbook addresses what types of benefits and rights, if any, independent contractors or contract workers are entitled to.

Topics Include:

• At-Will Employment
  • Definition of At-Will Employment
  • Determining Which Employees are At-Will
  • Removal of Classified Employees
  • Probationary Employees
  • Rights of At-Will Employees
  • Evaluating and Disciplining At-Will Employees
  • Liberty Interest Hearing/Lubey Conference/“Name Clearing” Hearing
• Independent Contractors/Contract Workers
  • The Impact of the Cargill Decision on Public Agency Employers
  • Are Contract Workers Who Qualify for CalPERS Also Entitled to the Same Benefits and Rights as Regular Employees?
  • Do Contract Workers Have Skelly Due Process Rights?
  • Tax Implications
• Part-Time and Temporary Employees
  • Designating Part-Time and Temporary Employees as At-Will
  • Avoid Destroying the Designation
  • Part-Time and Temporary Employees and CalPERS
  • What Benefits Must an Agency Provide to Part-Time and Temporary Employees?
  • Temporary Employment of CalPERS’ Annuitants

Employment relationships are similar to personal relationships; rarely do they end to both parties’ satisfaction.  One party often would like the relationship to continue, while the other party has a beneficial interest in severing the relationship and moving on to greener pastures. If done correctly, a “break-up” will allow both parties to move forward with no or relatively few feelings of resentment.  Conversely, a “bad break-up” may leave one party harboring resentment and looking for retribution or money.  Unlike in personal relationships, retribution for a “bad break-up” in an employment relationship may lead to a lawsuit, which could lead to liability and certainly will lead to spending money litigating, settling or both.

There are two ways an employment relationship ends:  involuntarily and voluntarily.  For purposes of this workbook, an involuntary separation occurs when the employer severs the employment relationship with an employee who otherwise desires to continue working for the employer.  Voluntary separations occur when an employee elects to end the employment relationship.  While liability most often arises out of involuntary separations, it can arise out of voluntary separations if an employer does not protect itself.  The purpose of this Workbook is to provide public employers with guidance regarding the best practices and procedures to use when involuntarily or voluntarily ending the employment relationship with an employee or group of employees.  The majority of the workbook focuses on involuntary separations; however, parts of the workbook touch on best practices for avoiding liability in voluntary separations, such as when an employee elects to retire.

When using this Workbook, it is important to consider that it is only a guide and cannot be relied upon for definitive legal advice regarding a specific situation.  Ending the employment relationship with an employee often requires a unique, fact-intensive analysis.  The analysis can change with the absence or addition of a single fact.  Therefore, we advise you to consult an attorney when dealing with a situation that could lead to future liability.

Topics Include:

• Terminating an Employee
  • Follow Rules and Procedures for Termination
  • Consider the Nature of the Employment Relationship
  • Permanent, or “For Cause,” Employees
  • Part-Time Employees
  • Contract Employees
• Legal Ramifications to Consider Prior to Ending the Employment Relationship
  • Discrimination Claims
  • Retaliation Claims
  • Termination for Private Conduct
• Termination for a Disability that Cannot be Accommodated
  • Interactive Process and Reasonable Accommodation
  • Defenses to Accommodation:  Health and Safety, and Undue Hardship
  • Inability to Accommodate
• Retirement and Retirement Incentives
  • Disability Retirement
  • Service Retirement
  • Early Retirement Incentives
• Layoffs
  • Layoff Rules
  • Duty to Meet and Confer Over Impact of Layoffs
  • Potential Legal Ramifications: Discrimination/Wrongful Termination/Retaliation
  • Layoffs In Lieu of Termination:  Due Process Concerns
• Legally Enforceable Settlement and Separation Agreements
  • Preliminary Issues
  • Common General Provisions
  • Variable Provisions
  • Sealing Personnel Documents
  • Taxation of Money Paid Pursuant to an Agreement
  • Discussion of Agreements at Public Meetings
• Post-Separation Obligations
  • Final Payment of Wages
  • Unemployment Insurance Benefits Requirements
  • Cobra Notification