Sometimes I think I should have gone to law school and studied labor law because of all the different legal areas I deal with as an EMS manager. Just when I think I know all there is to know about the laws and accompanying regulations, I find out there’s more that would assist me in conducting administrative hearings or investigations.
In my current position with Memphis (Tenn.) Fire Department, administrative or investigative hearings are routine whenever there’s misconduct or actions of employees on or off duty, Equal Employment Opportunity Title VII labor relation complaints, Occupational Safety and Health Administration safety violations, chargeable vehicle accidents or investigations conducted during the background hiring process.
During my employment with the St. Louis Fire Department, administrative or investigative hearings were also routine whenever charges were brought against an employee. In both departments, usually anywhere from one to three chief officers sit as an administrative or investigative hearing officer and make recommendations to the chief of the department. At times in both positions, I was required to sit as an administrative hearing officer; other times, I assumed the position of chief hearing officer.
As a chief hearing officer, you should be familiar with certain laws so the employee receives a fair and equitable hearing.
One of several laws you should be familiar with is Weingarten rights. Weingarten rights were handed down during a Supreme Court Ruling in 1975 in the case of National Labor Relations Board vs. Weingarten. Employees have Weingarten rights during investigatory interviews. If a supervisor questions an employee to obtain information that might be used later to issue discipline, or if the supervisor is asking an employee to defend what actions they took, the employee has the right to request union representation.
The supervisor or management of the EMS agency isn’t required to inform the employee that they can exercise their Weingarten rights at any time during the investigation or questioning. It’s actually the employee’s responsibility to know their Weingarten rights and request them.
If an employee makes a request for union representative during the investigative hearing or questioning, the supervisor or management of the EMS organization can stop the questioning until the representative arrives; the organization can also call off the interview or the questioning unless the employee chooses to waive their rights.
In many cases, the employee can speak with their union representative prior to any questioning or hearing, but the union representative can’t answer the questions for the employee during questioning.
Another ruling that management should be aware of is Garrity rights. Garrity rights came about after the Supreme Court ruled on a case in 1967 when the New Jersey attorney general began an investigation of ticket fixing in the townships of Bellmawr and Barrington.
Under Garrity rights, public employees are protected from incriminating themselves during investigative hearings or interviews. The basis of this protection is the Fifth Amendment to the U.S. Constitution, which says the government can’t compel a person to be a witness against themselves.
In the case that formed the foundation for Garrity rights, the police chief and five other employees were under investigation for ticket fixing. They were told that they didn’t have to say anything during the questioning that would lead to self-incrimination; however, they were also told that if they didn’t answer, they would be terminated. They chose to answer the question and their answers were later used in their prosecution.
As a supervisor or manager investigating an employee, you should also be aware of Loudermill rights. Loudermill rights came about after a 1985 Supreme Court ruling in the case of Cleveland Board of Education vs. Loudermill. This Supreme Court decision said that most public employees have property interest in their jobs, and are therefore allowed due process rights if they’re fired.
Loudermill rights include a written or oral notice regarding why they’re being fired, any evidence to charges that are being brought against them and the right to a pre-termination hearing during which the employee can respond to the charges made against them.
Disciplining employees and conducting investigations is, for me, one of the most unpleasant parts of being an EMS manager. That fact that your actions can take away an employee’s ability to feed their family and put a roof over their heads makes your responsibility as a manager to act appropriately increase dramatically. During any investigations, don’t forget the five Ws: what happened, when it happened, where it happened, why it happened, and who was present, observed or participated in the incident. JEMS
This article originally appeared in March 2012 JEMS as “Legal Matters: Know the laws to protect your employees.”