Terminating the Employment Relationship

employee should be given at least five working days to respond. Reasonable extensions should be provided if the employee or their counsel makes a timely request. Failure to respond within the time specified may result in the employe e’s waiver of procedural rights, but circumstances surrounding the waiver should be thoroughly documented. Generally, a waiver of a constitutional right must be explicit, knowing and voluntary, and in some circumstances, a failure to respond may be excused for good cause. 19 c. Skelly Conference An employee may respond to a Notice of Intent in writing or orally at a Skelly conference. If the employee elects to respond in writing, there is no need to hold a Skelly conference. A Skelly conference is a meeting, at which an employee has the opportunity to tell their “side of the story” and/or to offer any mitigating factors s/he believes the decision maker should consider before the discipline is finalized. Its purpose, according to the courts, is to minimize the risk of the employer making an error in the action it takes. It is important to remember that the Skelly conference is not an evidentiary hearing.

While a Skelly conference is primarily for an employee’s benefit, management can and should use the meeting as a tool to:

Determine the strength and weaknesses of the charges;

Ascertain the true defenses available to the employee; and

Avoid surprise in the event of appeal.

There is no rule mandating who can or cannot conduct the Skelly conference (sometimes referred to as the “Skelly officer”). The Skelly officer should be “reasonably impartial,” and not involved in the conduct for which the employee is being disciplined. In the Skelly case, the Supreme Court stated the same individual who proposed the discipline could serve as the Skelly officer. In general, the Skelly officer should be someone who is ranked sufficiently high enough in the organization to make a final decision. We recommend that it be the appointing authority (i.e., person(s) with power to hire) or his their designee(s), and whenever feasible, the same person for all Skelly conferences. The individual conducting the Skelly conference is mainly there to listen (and take notes) to the employee’s side of the story and consider the infor mation presented. The Skelly officer may also want to clarify any confusing issues, or ask relevant questions of the employee which may go to the intent or bases for the proposed discipline. The Skelly officer should not allow the employee or the employe e’s representative to cross examine the Skelly officer. The Skelly officer does not need to justify their actions at the Skelly meeting/conference. The Skell y officer should end the meeting/conference if the employee does not want to tell the employee’s side of the story, but instead only wants to use the time to interrogate the Skelly officer.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 20