August 1996 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

WHEN IS A TERMINATION NOT A TERMINATION?

Welcome to the inaugural edition of Counsel's Corner. In each edition I will bring an interesting and hopefully educational aspect of Labor Law, especially in the Public Sector, to you. Through knowledge comes strength, and with strength comes security. With this in mind, let's look at today's topic.

Under the terms of the CSEA/County of Nassau Collective Bargaining Agreement ("CBA"), all full time employees must serve a 26 week "trial period" before receiving the protections of §10 (the disciplinary clause) of the CBA. There are certain classifications of full time employees who do not receive disciplinary protection after 26 weeks, most notably provisional employees and employees in trainee positions (you should consult the CBA for the exceptions). This "trial period" is strictly a contractual right and is not to be confused with the civil service law requirement of a "probationary period" upon appointment or promotion to a new position.

Once the 26 week trial period is completed, no employee (except those exempted from §10 coverage) can be terminated unless the County brings disciplinary charges against the employee. This is an extremely important right for the employee and forms the basis for the job security associated with a civil service position.

Just how important is this right? Recently a Nassau County employee, was "terminated" by the County ONE DAY after his trial period ended. The employee filed a timely grievance alleging that his rights under §10 of the CBA was violated. The County's position was that the employee was properly terminated at the conclusion of his probationary period. As stated before, a probationary period is different from the trial period.

Under the civil service law, every new appointment to a position requires the employee to serve a probationary period (unless the Civil Service Commission agrees to waive the probationary period). The purpose of the probationary period is to allow the employer to determine whether an employee is able to perform the duties of the new position. At the conclusion of the probationary period, the employer is allowed to either keep the employee in the new title or remove him or her from the new title, so long as certain forms are completed prior to the end of the probationary period.

The County's right to remove an employee at the end of a probationary period is limited by §10 of the CBA. What that means is that even if the County completes all the paperwork for removing an employee during a probationary period, if the employee works just one day more than 26 weeks, s/he is automatically protected from termination unless disciplinary charges are brought under §10.

Now, back to our scenario. Dissatisfied with the County's refusal to reinstate the employee, CSEA filed for arbitration. Under CSEA's Legal Assistance Program, the employee was represented, free of charge, by this writer. At the arbitration hearing, we proved that the employee worked one day more than the 26 week trial period. We also established that the employer notified the employee to work that one extra day. Meanwhile, the County claimed it made a mistake and had miscalculated the end of the 26 week trial period, and that they had filed all the necessary forms with the Civil Service Commission.

What was the result?

You guessed it, the arbitrator held that even if the County had made a mathematical error, the fact remained that they did allow the employee to work beyond the 26 week trial period (even though it was for merely one day), therefore §10 of the CBA was violated by the County, the termination was improper and the employee was ordered reinstated to his former position with full back pay, benefits, and no loss in seniority.

The moral is to be alert to your contract rights, do not take it for granted that the employer is correct when adverse action is taken and make sure to file a TIMELY GRIEVANCE!

I hope this has been educational and if just one employee saves his or her job as a result then it has served its purpose.

NEXT TIME: DUE PROCESS, ITS NOT JUST A TERM, ITS A RIGHT!