The two most important pieces of policy advice in regard to employment termination is to make sure all job performance issues have been properly documented and to make sure you call your city attorney early in the process. Below are common considerations and questions that can impact employment terminations.
Does the Employee have Civil Rights Protection?
Consider whether the employee is in a protected class for the purposes of civil rights. Under both the Iowa Civil Rights Act and/or Title VII, employees are protected if they have certain characteristics, including age, sex, race, national origin, religion, disability, sexual orientation, gender identity, creed and color. Under Iowa law anyone older than 18 is protected from age discrimination. Almost everyone is in some protected category, so if the person who is the potential subject of discipline or firing is in a protected category, consider how comparable employees who don’t share that trait have been treated. The classic example is terminating a member of a racial minority group for insubordination or incompetence when employees who are not in the protected category have not been disciplined. You should always then ask how other people have been treated when a similar violation or bad act has occurred. Also remember retaliation, which is the most numerous of all civil rights claims. All the civil rights laws include a provision against retaliation. If the employee being considered for discipline has filed a civil rights charge or has recently participated in someone else’s charge, be prepared to ask how that involvement did not impact the decision to discipline now.
Contracts, Collective Bargaining, Civil Service, Veterans, Public Safety Officers and Active Duty Military
Contract rights can arise from a number of different sources. Some employees may have a stand-alone employment contract. Some employees may be subject to a collective bargaining agreement that provides protection from at-will termination. Also consider civil service rights or other statutory provisions that give them a state law based property right in their employment.
Employees with a property right in their continued employment are entitled to a “pre-termination hearing.” If an employer fails to give a pre-termination hearing when there is a property right, then there is a violation of the post Civil War, civil right law. Property rights exist when there is a contract, a state law property right, or a reputational injury. Most collective bargaining agreements provide for a limitation on at-will employment. For instance, most such collective bargaining agreements provide for “just cause” or “proper cause” to fire. Usually these are placed in a disciplinary or grievance provision in collective bargaining agreements, but may also be hidden in a management rights clause. Examine your collective bargaining agreements to determine whether you are required to have just cause or proper cause or some other sort of cause in order to terminate an employee.
There may also be limitations on firing if an employee has a stand-alone contract. Normally, stand-alone contracts only exist for higher level employees. Oftentimes, such contracts provide limitations on an at-will firing. On the other hand, some contracts may not have a limitation but provide for severance pay as an alternative. Again, look at any contract that may exist before termination.
Property rights which can require a pre-termination hearing arise from state law. Arguably, two such provisions for local governments can be found in both the Code of Iowa Section 372.15 for cities and Section 331.321(3) for counties. Section 372.15 provides that anyone who is “appointed” to a city office may be removed by the officer or entity making the appointment, but the removal must be by written order. The order must give the reasons for the removal, be filed with the office of the city clerk, and a copy sent by certified mail to the employee being removed. The appointee is also entitled to a public hearing before the city council on all issues connected with the removal. However, it is arguable that this Code provision does not provide a limitation on at-will termination, but instead merely grants the employee a right to a public hearing after removal.
Property rights can also come into existence through civil service. Municipal civil service exists for cities which had a population in excess of 8,000 in the 1980 census. An employee can only be removed for neglect of duty, disobedience, misconduct or failure to properly perform his duties. A post-termination hearing is also provided.
A property right to a pre-termination hearing can also exist when a firing will result in reputational injury. If an employee is fired for a reason that would damage her reputation, then a pre-termination hearing must be held. Accordingly, anytime you consider firing someone for theft, incompetence or another reason that is likely to be defamatory or harmful to the employee’s reputation, a pre-termination hearing must be held.
A pre-termination hearing must also be held when the employee is entitled to veteran’s preference. If an employee qualifies for Veteran’s Preference they can only be removed for “incompetency” or “misconduct” after a hearing upon due notice upon a stated charge (Section 35C.6).
One of the issues that can occur with Veteran’s Preference is the interplay with both civil service protection and with collective bargaining agreements. The Iowa Supreme Court has held that generally the civil service statute will prevail over the Veteran’s Preference Statute. Generally, if a collective bargaining agreement provides at least protection equal to the Veteran’s Preference Rights, then the collective bargaining agreement will apply.
Another issue that arises with property rights is the Peace Officer’s Bill of Rights found in Iowa Code Chapter 80F. This statute, which applies to firefighters, police, EMS, jailers, dispatchers and parole officers, provides a whole series of procedural rights that apply when a peace officer is being investigated for alleged bad acts. It provides that written summaries of complaints must be given to the officer with limited exceptions.
There is also a federal statute that can create a “just cause” requirement for discipline or firing. The Uniformed Services Employment and Re-employment Rights Act (USERRA) provides protection for employees who are part-time soldiers. USERRA states that if one of your employees has been called to active duty, she has “just cause” protection from firing for a certain period of time. If a soldier has been called to active duty for between 30 and 180 days, they have 180 days of protection unless the firing is for just cause. If a soldier has been called up for more than 180 days of service, she has one year protection for just cause firings. “Just cause” has been defined as was the discharge reasonable in the circumstances?
Open Records and Employee Notice Requirements
Any final disciplinary action taken that results in discharge (including those that resigned in lieu of termination) or were demoted is considered an open record in Section 22.7(11). Prior to taking disciplinary action, the employer must notify the employee in writing that the information placed in the employee’s personnel file as a result of the disciplinary action may become a public record as outlined in Section 22.15.
Does Employee have Protection from Wrongful Discharge?
Iowa recognizes a tort for wrongful discharge. If an employer fires an employee for a reason that violates public policy, then the employer is liable for damages. Some of the more well-known public policies that will support a wrongful discharge claim are terminating an employee for the filing of a workers’ compensation claim, for filing a claim for partial unemployment, for making a safety whistleblowing charge, for firing an employee for giving truthful testimony and for firing an employee for demanding lawful payment of wages. Accordingly, anytime you consider terminating an employee, determine whether the reason would be one which might violate public policy.
Does your Employee have other Statutory Rights?
A number of different statutes provide an employee protection from termination. The following are some of the more well-known ones. The Family Medical Leave Act (FMLA) applies to all public employers. However, to be an “eligible” employee there must be 50 or more employees located within 75 miles. It prevents an employer from retaliating or interfering with an employee’s taking FMLA leave. The Fair Labor Standards Act (FLSA) governs, among other things, who is entitled to overtime pay. It also outlaws retaliation against an employee for making a claim for back owing overtime. Accordingly, if the employee that you are considering disciplining has recently made claims regarding failure to pay overtime, be extra cautious.
While not a statutory claim, the First Amendment to the U.S. Constitution also provides limitations on terminating employees for exercising their free speech rights. To determine whether the First Amendment protects a public employee from discharge because of her speech the Court uses a two-step analysis. First, you must determine whether the speech is a matter of public concern, and second whether the employee was acting primarily as a citizen or as an employee when speaking. The employee is protected when speaking as a citizen.
Iowa also has a Whistleblower Protection Act which prohibits the discharge or other adverse action for a public employee’s disclosure of information to, among others, a state official, a political subdivision official, or any other public official or law enforcement agency if the employee reasonably believes that the information evidences a violation of a law or rule, mismanagement, gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety (Section 70A.28).
Investigation and Decision Making
Just because a supervisor is demanding an employee be fired immediately, does not mean you should do it. Always conduct your own investigation. Require the supervisor to give you a statement, preferably in writing, as to what happened. Then determine who is knowledgeable based on that statement; talk to those witnesses and gather evidence, including e-mails and other documents. It should also include visiting with the employee who is the subject of the potential discipline. Remember that if the employee is a member of a union or is otherwise protected by the Iowa Peace Officer’s Bill of Rights under Code Chapter 80F, the employee may have a right to have a witness or a representative present at the time you interview him regarding potential discipline.
If, after conducting your investigation, you determine that terminating is the proper route, then decide who is going to do the termination. Typically, have a witness accompany the supervisor who is doing the termination, and consider having a script as to what will be said to the employee, appropriate documentation for the termination, and notices of termination for the employee to sign.
If the employee has access to your e-mail or computer system, try to end their access to your system immediately before the meeting. Be prepared to answer questions regarding unemployment, insurance continuation and access to personnel files. Consider whether a severance agreement is appropriate based on the employee’s years of service and/or potential for future litigation.
In the end, make sure that you have engaged in a fair and impartial decision-making process when terminating the employee. While this may go without saying, it is vital to ensure both continued support in your office and the community at-large. In addition, it is always good to keep in mind whether you can justify what you’ve done to 12 of your peers on a local jury if you get sued.
Finally, if you learn that a former employee is going to make a claim against you, you have an obligation to preserve records. It may be best to gather the applicable electronic and hard copy documents at the time of termination and preserve them, instead of waiting until you receive notice of a claim. It is better to think ahead for potential problems than to look back at avoidable mistakes.
Material adapted from an article that appeared in the April 2013 edition of Cityscape by Hugh J. Cain, J.D. and Brent L. Hinders, J.D., M.P.A. of Hopkins & Huebner, P.C.