In Carney v. City of Springfield (1988), the Massachusetts Supreme Court ruled that it was improper to discharge an officer without providing a promise of full "transactional immunity."
Massachusetts is the only state that requires that a public employee be granted transactional immunity before being compelled to answer questions.
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption.
JOB NOTICES AND ADVERTISEMENTS
The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the essence of the business.
The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
WAIVERS OF ADEA RIGHTS
At an employer's request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid.
Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.
WHEN YOU ARE CALLED IN TO MEET WITH YOUR SUPERVISOR,
DO YOU KNOW WHAT RIGHTS YOU HAVE AS AN EMPLOYEE?
Section 75 of the Civil Service Law provides protection to every post-probationary permanent or contingent permanent employee in a competitive class job. It also protects non-competitive employees with at least five years of continuous service, other than those employees in positions which the Civil Service Department has designated as "confidential” or that "require the performance of functions influencing policy," pursuant to Section 42(2-a). Veterans and exempt volunteer firefighters (as defined by Section 85 of Civil Service Law and General Municipal Law, respectively) regardless of their titles, are protected by Section 75. An employee who has Section 75 protection can be removed from his/her job only after a hearing at which the employee must be proved guilty of misconduct or incompetence.
You have the RIGHT to ask what the meeting is about, and what will be discussed.
If the meeting is disciplinary, accusatory, or investigatory in nature, you should ask to have a Union representative present.
If your Union representative is not available, we can ask that the meeting be rescheduled to another time when your representative is available.
If your supervisor orders you to attend the meeting, follow these steps:
1.Attend the meeting to avoid being accused of insubordination;
2.As the meeting begins, inform the person conducting the meeting that
·You are there under protest;
·You intend to file a grievance because you were denied your right to have your representative present; and
·You will stay in the meeting but will not participate in any discussion (you have the RIGHT to remain silent).Be sure to take notes of what is said to you.Do not respond to questions or accusations!
If you attend a meeting that starts off being routine, but during the course of the meeting you feel you are being harassed, intimidated, accused, investigated or disciplined, you should request that your representative be present for the rest of the meeting.If you request is denied, follow the steps above.
If your supervisor asks whether you agree to have the meeting tape-recorded or to have a stenographer present, you have the RIGHT to ask that this meeting NOT be conducted under those conditions.If your supervisor insists that the meeting recorded, state on the record that you did not agree to this and then be silent.
BOTTOM LINE: KNOW YOUR RIGHTS
If you are called into a meeting, you have the right to know the purpose of the meeting and whether it may lead to discipline.
If ordered to attend a meeting, comply with the directive to avoid a charge of insubordination.Clearly state that you want representation present before the meeting continues and that you will not respond to charges or questions.THEN REMAIN SILENT AND DO NO REACT TO CHARGES OR QUESTIONS.
WHAT YOU NEED TO KNOW
An employee acquires property rights to their position once they become permanent.This right cannot be taken away from them without due process.Due process includes the right to respond to the charges during an administrative hearing and to be represented during any meeting called for the purpose of taking disciplinary action or to investigate matters, which could lead to such action.
New Jersey, Massachusetts and Connecticut Public Employees are entitled to Weingarten Rights
AN EMPLOYEE'S RIGHT TO UNION REPRESENTATION
The rights of unionized employees to have present a union representative during investigatory interviews were announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten Rights.
Employees have Weingarten Rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten Rights; it is the employees’ responsibility to know and request.
When the employee makes the request for a union representative to be present management has three options: (I) it can stop questioning until the representative arrives. (2) it can call off the interview or, (3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)
Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative's right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee's case.
In the case of Garrity vs. New Jersey (1966), the U.S. Supreme Court determined that public employees could not be forced, under clear threat of discipline, to violate the principles of compulsory self-incrimination.This decision established what have come to be called Garrity Rights for public employees.
The U.S. Supreme Court ruled in the Garrity vs. New Jersey case that if a public employee is ordered to answer questions by their employer under the threat of discipline about a potential criminal matter, they are not voluntarily waivering their rights against self-incrimination, but are making statements under duress. The police, to further investigation or gather evidence to be used in a criminal investigation, cannot use statements made under these conditions.
The Garrity rule is similar to Miranda rightsfor public employees. However the burden is on the employee to assert their Garrity rights. These rights can and should be asserted whenever an employee believes they are being investigated for possible criminal conduct. Once an employee has asserted their Garrity Rights management must:
Give a direct order to answer the question;
Make the question specific, directly and narrowly related to the employee’s duty or fitness for duty;
Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding, nor the fruits of those proceedings; and
Allow union representation if the employee also asserts their Weingarten Rights (New Jersey, Connecticut).
In New York, while there is no Right to Representation, such practices would dictate this right.
To ensure that your Garrity Rights are protected, you should ask the following questions:
If I refuse to talk, can I be disciplined for the refusal?
Can that discipline include termination from employment?
Are my answers for internal and administrative purposes only and are not to be used for criminal prosecution?
Should you be in a situation where Garrity Rights are needed, understand that the employer will most likely never heard of Garrity Rights and their meaning. Don't be surprised or angry with this, it is just not that common. A simple explanation that you understand that the employer has a right to investigate the matter, but that you also have a Fifth Amendment right against self-incrimination should clear the way for meaningful dialog. These two rights can co-exist with the proper use of Garrity Rights. In many cases you may not even be aware of whatever crime or problem they are talking about, and even if you are aware of it, you also know you did not do it. Don't fall into the trap of talking too much just to make the employer happy. Be cautious, exercise your rights, and seek legal advice.
Your employer may tell you things like:
If you confess or admit to the crime or tell them who did the crime, they won't prosecute you. However, your employer does not have the final authority to determine who will be prosecuted for what. It is up to the District Attorney and they will make that determination. Please be cautious in your statements during interviews and help keep your co-workers advised of their rights.
If you have any questions or for more information, contact your UPSEU Representative.
You’ve just received a notice of discipline or performance evaluation that you don’t agree with.
Now what do you do?
As a member of a UPSEU bargaining unit, you have representation to help preserve your rights!But, it is still important for you to know what your rights are.
Employees have the right to respond in writing to any information contained in their office personnel file.This reply will become a permanent part of the personnel file.This gives employees an important opportunity to respond to any negative performance evaluations or notices of discipline with in their files.The objective of a written rebuttal should be to present positive information in support of the employee’s performance or actions.Following are some guidelines to keep in mind when composing a rebuttal.UPSEU representatives are available to assist you in preparing you response/rebuttal.
Do not exceed one page in length.A clear, concise rebuttal will be more effective in helping the reader understand your point of view.Yu should be able to communicate your rebuttal on one page.Avoid the urge to convey too much information about the adverse incident or evaluation.Too much information will likely confuse the reader and negate the persuasive impact of your rebuttal.
Avoid negative, defensive statements.A positive statement can be more effective in rebutting the negative interpretation of the incident.For example, resist the urge to be defensive and state: “Co-worker Smith deserved my sharp comments.”A more positive and effective approach would be to say: “My interactions with co-workers are always professional and appropriate.”
Do not include derogatory comments about co-workers or supervisors.You have the opportunity to review a copy of all adverse statements prepared by your employer for inclusion in your personnel files.Your written rebuttal is not subject to verification, therefore, negative statements about others are not appropriate to include in this document.Otherwise, these employees would have to be granted the opportunity to respond to your negative statements.This would not be practical nor desirable.Call your UPSEU Representative for assistance.You UPSEU Representative will review the draft of your rebuttal, offer suggestions to increase its impact and work with you to prepare the final document.
Include a copy of the rebuttal in your personnel files.UPSEU will send the rebuttals directly to the appropriate persons for inclusion in your personnel files.
Improper employer practices.It shall be an improper practice for a public employer or its agents deliberately
(a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section two
hundred two for purpose of depriving them such rights;
(b) to dominate or interfere with the formation or administration of any employee organization for the purpose of
depriving them of such rights;
(c) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or
participation in the activities of, any employee organization;
(d) to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees; or
(e) to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, unless the
employee organization which is a party to such agreement has, during such negotiations or prior to such resolution
of such negotiations, engaged in conduct violative of subdivision one of section two hundred ten of this article.
Article V, Section 7 of the New YorkState Constitution guarantees that your retirement benefits are secure:
[Membership in retirement systems; benefits not to be diminished nor impaired.]§ 7.After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.(New Adopted by ConstitutionalConvention of 1938 and approved by vote of the people November 8, 1938.)