As an employee, you may have a right to the presence and counsel of a union representative at a meeting where your conduct is being questioned and you reasonably believe disciplinary action may result. If you are in doubt about whether you are entitled to union representation, ask for it anyway.
"Weingarten rights" refer to an employee's right to be accompanied by a union or other representative at an employer-conducted interview that the employee reasonably believes may result in disciplinary action against him or her. Although the Weingarten case in which the U.S. Supreme Court first recognized this right involved private sector employees, the NYS legislature has passed legislation to give similar rights to public employees.
Workplace Health and Safety
According to federal and state occupational safety and health laws, employers must provide safe environments for all workers in their buildings. All workplaces should have emergency plans covering situations ranging from fire or weather emergencies to incidents of violence. As a new employee you need to know what to do and where to go in emergencies. Your employer should have specific guidelines.
NYSUT also has information and material that may be helpful. As a new staff member, you may feel intimidated about bringing health and safety issues to management. Contact your local president to report problems. If your local has a health and safety committee, contact a committee member for help. Talk to co-workers and find out if other staff members have the same or similar problems.
Your local then can bring the problem to the attention of management and present it as a larger issue, affecting several members. By law, you have a right to complain without retaliation from the time you are hired.
Records and Rights
Employees are protected by various state laws, regulations and their collective bargaining agreement with the employer. It is your obligation to know your rights and responsibilities and to maintain proper records. Keep your professional file at home in a safe place. Don't count on management to keep your file up to date. Your file should include, at the minimum:
- Transcripts and diplomas documenting your academic credentials.
- Certificates, licenses documenting your professional credentials.
- Your collective bargaining agreement and any other material pertaining to your employment rights and privileges.
- Records for your pension plan, employment and salary history.
- Letters of appointment to your current and previous positions.
- Correspondence of any kind relating to your professional career, including copies of any evaluations, observations, or letters placed in your personnel file.
Just Cause and Due Process
"Just cause" is a principle that protects employees from arbitrary and capricious discipline and discharge by employers. Typically, just cause protections exist where unions negotiate such protections into collective bargaining agreements. There are some general principles that apply to all.
Prior to being eligible for "just cause" protections, a member typically serves a probationary period. During this period the member is often described as an "at will" employee, meaning that management can discipline and/or discharge the member without having to follow the detail procedures of the "just cause" provision in the contract. After the member completes the probationary period, which is defined by the contract, the "just cause" provision will dictate the procedure and standards management must follow if it attempts to discipline or discharge an employee. For teachers and teaching assistants, the probation period is defined by law.
While management may attempt to discipline or discharge a member for reasons such as insubordination or incompetence, it must provide the member with due process rights. Due process affords our members certain protections, including an opportunity to see the written charges levied against them; an opportunity to respond to such allegations; the right to union representation as allowed by the collective bargaining agreement; and in some cases the opportunity to proceed to a hearing before a neutral hearing officer. At the hearing, the member may call witnesses and cross-examine witnesses brought forth by management. Remember, in "just cause" proceedings, the burden is upon management to prove its case.
While a hearing officer will consider many factors, "just cause" also establishes certain criteria that may be examined. These include, but are not limited to, the following:
- Did the employee know or should he or she have known the conduct in question could result in charges?
- Did management perform a fair and reasonable investigation?
- Has management consistently applied its rules among all employees?
- Is the level of punishment that management is seeking reasonably related to the seriousness of the behavior?
- What is the employee's record of service?
While the criteria and standards will differ from contract to contract and from arbitrator to arbitrator, "just cause" provisions require that management afford our members due process rights that prevent management from acting in an arbitrary and capricious manner when it comes to imposing discipline. This protects our members from political agendas and personal vendettas, while providing an environment fostering professional freedom.