New York Labor And Employment Law Report

New York Labor And Employment Law Report

Category Archives: Discharge and Discipline

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NLRB Again Imposes Duty to Bargain Over Discipline Even Before Agreement on a Contract

Posted in Discharge and Discipline, Labor Relations, National Labor Relations Board
On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline… Continue Reading

Monday Morning Quarterback: What Labor Practitioners Can Learn From “Deflategate”

Posted in Arbitration, Discharge and Discipline
The following article was published in Employment Law 360 on September 15, 2015. Turn down the lights and roll the film on the recent district court decision to vacate the four game suspension of New England Patriots’ quarterback Tom Brady.  The much ballyhooed proceeding known as “Deflategate” holds valuable lessons for all labor practitioners, regardless… Continue Reading

Let’s Get Back to the Basics of Workplace Investigations When the Whistle Blows

Posted in Discharge and Discipline, Harassment, Whistleblowers
Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on.  With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer.  Unfortunately, Einstein’s definition of insanity — doing things… Continue Reading

A Teacher’s Right to Access Student Records in a Disciplinary Proceeding is Not Absolute

Posted in Discharge and Discipline, Public Employment
As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding.  However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects… Continue Reading

Understanding an Employer’s Obligations When Domestic Violence Affects the Workplace

Posted in Americans with Disabilities Act, Discharge and Discipline, Employment Discrimination, Family and Medical Leave Act, Occupational Safety and Health, OSHA
Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes.  While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion.  The Center for Disease Control and Prevention reports that 1 in 4 women and 1… Continue Reading

The NLRB Requires Employers to Bargain Over Discretionary Discipline Prior to First Contract

Posted in Discharge and Discipline, Labor Relations, National Labor Relations Board
The National Labor Relations Board (“NLRB”) continues to issue rule-changing decisions that create troubling results for employers.  We recently reported, for example, on the NLRB’s reversal of decades-old precedent when it ruled that a dues checkoff provision survives the expiration of a collective bargaining agreement.  Two days after issuing that decision, the NLRB issued a decision… Continue Reading

Second Circuit Court of Appeals Rejects Employee’s First Amendment Retaliation Claim Against School District

Posted in Discharge and Discipline, Public Employment, Retaliation
On September 10, 2012, the U.S. Court of Appeals for the Second Circuit reversed a 2010 District Court decision and rejected a claim by a terminated public school district employee that she was subjected to retaliation for engaging in protected speech under the First Amendment to the U.S. Constitution.  In Ross v. Lichtenfeld, the Second Circuit held… Continue Reading

An Employment Litigator’s Tips for Preparing Effective Performance Evaluations

Posted in Discharge and Discipline
As Henry J. Kaiser once said, "Problems are only opportunities in work clothes." So it is with annual performance evaluations -- supervisors should see them as an opportunity to improve employee performance, or, if that does not work, as a valuable tool in defending against employment litigation claims. Here are a few performance evaluation do's and don'ts for supervisors.… Continue Reading