December 1, 2022

Volume XII, Number 335

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Give Employees the Opportunity to Be Heard Before Imposing Discipline

Sometimes employers believe they have all the evidence they need to discipline or terminate an employee, even without having talked to the employee and hearing the employee’s side. Why waste time talking to the employee when it seems clear they engaged in the suspected misconduct or some other policy violation? Not so fast. An employer should not deny an employee the “opportunity to be heard” in haste to impose discipline and “be done with the matter.”

In a unionized workforce particularly, it is important that employees are given the opportunity to tell their side of the story before a decision is made to impose discipline. Regardless of how rock-solid you think your case for discipline may be, giving an employee the opportunity to be heard (in both union and non-union environments) is the best approach for a number of reasons, including the following.

First, a thorough investigation and fundamental fairness dictate that you hear what an employee has to say before making a discipline decision. The purpose of a thorough investigation is to assist an employer in gathering all the relevant facts and making an informed decision. Failure to interview the accused may also put the thoroughness of the investigation into question. Also, if an employee is truly being given the opportunity to be heard before a decision is made, the employer probably should not show up at the employee interview with a discipline or termination letter already in hand (making it appear that you have already made the decision, regardless of what the employee may have to say).

Second, getting (and documenting) the employee’s side is always a best practice as it can help refute any later attempts by the employee to change their story, e.g., after filing a grievance or lawsuit. The employee may also admit the conduct at issue. A court or jury may also question the fairness and thoroughness of an investigation that failed to include talking to the employee.

Third, in a union environment, failure to give an employee the opportunity to be heard before imposing discipline may be viewed with disfavor by an arbitrator and provide grounds for reversal of the discipline. Some arbitrators have granted a grievance and reversed discipline simply because an employer failed to give an employee the opportunity to be heard, based on notions of fairness and due process.

No matter how dead-to-rights you may think you have the employee, providing the employee the opportunity to be heard before a discipline decision is made is well-advised. You just never know what information the employee may reveal that may or may not change your planned course of action. Regardless, a fair and thorough approach to employee discipline is always prudent. And, you would rather hear what the employee has to say now versus (months or even years) later, after they have retained a lawyer and made claims of discrimination, retaliation, etc. Also, in the union and arbitration context, failing to give an employee the opportunity to be heard could result in a grievance being granted.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 276
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About this Author

Philip B. Phillips, Foley Lardner, Automotive Industry Lawyer, Labor Rights
Partner

Philip B. Phillips is a litigation partner with Foley & Lardner LLP and chair of the firm’s Litigation Department in Detroit. He is a member of the Labor & Employment Practice and Automotive Industry Team, and also serves as the professional responsibility partner for Foley’s Detroit office. He counsels and represents business clients across the country in all aspects of labor and employment law, including FLSA wage and hour collective actions and multi-plaintiff employment litigation defense, non-competition and trade secrets matters, collective bargaining and...

313-234-7109
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