Terminating the Employment Relationship

need not involve witnesses, cross examination, exhibits or any other features of a typical due process hearing. It is more in the nature of a response provided by the employee to an agency manager who has authority to assure that a record of the response is available. Although the manager conducting the hearing has discretion to modify the discipline, there is no duty to do so. An employer’s failure to provide a required liberty interest hearing does not entitle the employee to back pay unless the agency’s own rules call for back pay. Curiously, the officers who were denied a liberty interest hearing in the actual Lubey case were ordered reinstated. Presumably, thereafter they could be immediately dismissed if the agency takes the required procedural steps. 2. P ROBATIONARY E MPLOYEES Probationary employees are essentially a sub-category of at-will employees. In most agencies, probationary employees make up the largest group of at-will employees. The probationary period is considered an integral part of the recruiting, testing and hiring process. The period is designed to allow employers to evaluate both objective and subjective factors in assessing whether the employee is a good fit for the job, the organization and its employees. If not, the employer should be able to reject the employee prior to the end of the probationary period without cause and without the right of appeal. a. Defining the Probationary Period Local rules typically establish the legal requirements attached to probationary employment, including the length of the probationary period. There is no independent legal requirement setting a maximum length for the probationary period, but normally, entry level probation ranges from six to 18 months. The longer period is typically reserved for safety employees who spend the first part of their employment attending a training academy. Many agencies have recently changed the description of the length of the probationary period from months to hours. For example, instead of a 12 month probationary period, probation is described as lasting for 2080 work hours. Although this is the hourly equivalent of 12 months, using work hours to measure the length of the probationary period focuses on the time spent actually working. If the probationer is off work for any reason, then those hours do not count toward satisfying the probationary period. In these instances, it may take more than 12 months for the employee to work the required 2080 hours. Any agency desiring to change the description of the probationary period (e.g. from months to hours) would likely have to meet and confer with recognized employee organization(s). If the agency has part-time employees who serve a probationary period, the agency should carefully specify what the period is. For example, the agency should specify the prorated portion of 2080 hours (if the full-time employee probationary period is one year) for part-time employees.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 14