Employee and Labor Relations and Performance Management
Labor relations fundamentals
Where employees are represented, mandatory subjects of bargaining include wages, hours, and other terms and conditions of employment; permissive and prohibited subjects exist but are narrower. Weingarten rights give a represented employee the right to union representation during an investigatory interview that the employee reasonably believes may lead to discipline - but only if the employee requests it, and only for represented employees. Grievances typically move through a stepped procedure ending in binding arbitration.
Discipline and due process
Public employees usually hold a property interest in continued employment, so Loudermill due process applies: oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to respond - before the deprivation. Progressive discipline (verbal → written → suspension → termination) is typically a matter of policy or contract, not constitutional mandate.
Just cause
Arbitrators commonly ask: Was there a rule? Was it communicated? Was the investigation fair and complete? Was there substantial proof? Were employees treated consistently? Was the penalty proportionate to the offense and the record?
Performance management
Appraisals should be based on pre-communicated standards, observed behavior, and documentation. A performance improvement plan is a documented, time-bound tool with specific expectations and support - not a formality to justify a predetermined termination.
Traps
- Applying Weingarten to non-union employees.
- Confusing pre-discipline Loudermill notice with a full post-discipline appeal hearing.
- Assuming progressive discipline is legally required in every case.
- Letting a first-time serious offense go undisciplined, then citing progressive discipline later.
Rule of thumb
For any discipline question, verify four things: rule, notice, investigation, proportionality.
Worked example: An employee is suspended without any prior notice or chance to respond. The suspension may be procedurally defective regardless of whether the underlying misconduct occurred.