November 15, 2024 — For members who are suspended without pay, time is of the essence – the longer the case goes, the harder it is to stay financially afloat, and in some cases, that hardship leads to members settling cases they otherwise would have contested.
Under President Spence’s leadership, PEF’s Contract Team zeroed in on the issue and negotiated and entered into a Memorandum of Agreement (MOA) with the state allowing for an Expedited Suspension Review process.
“Being suspended without pay is an incredibly difficult thing for anyone to go through and we used to have to wait until the conclusion of the state’s case-in-chief at an arbitration hearing before we could argue that the standard of probable cause had not been met for suspension,” said PEF Assistant General Counsel Alison M. Thorne. “This MOA allows us to challenge probable cause for suspension at the beginning of most disciplinary suspension cases. Prior to the MOA, it could have taken several months before the suspension could be reviewed by an arbitrator. The addition of this process has been an incredible benefit to our members who are suspended and facing disciplinary action.”
PEF Director of Contract Administration Debra Greenberg, who worked closely with the PEF Contract Team, said: “Having the quick suspension review, if successful, can free the employee facing a notice of discipline to contest/defend it at arbitration instead of being financially pressured to settle, since they remain at work (or at least on the payroll) while the disciplinary case is pending.”
This contract provision applies to Article 33 cases where an employee served with disciplinary charges is suspended, while the Notice of Discipline (NOD) is pending, due to the agency’s determination that the employee’s continued presence on the job is either a danger to persons or property, or a severe interference to operations. It does not apply to cases where charges allege patient abuse/neglect or in cases where the member has been charged with a crime.
Within five business days of an employee’s suspension or the union’s receipt of the NOD, the union may request that the arbitrator review the suspension. PEF and the state then have five business days to submit a position statement as to whether the contractual standard has been met. The arbitrator reviews and renders a short email decision deciding if probable case for suspension has been met.
Since the program became effective in 2021, the Office of General Counsel has requested expedited review in more than 160 cases.
“Even if we had been successful in getting just one member returned to payroll, it’s worth it,” Thorne said. “However, on average, the arbitrator has found that the State had no probable cause for suspension and returned the member to the payroll in close to half the cases we have filed. These members have been ‘made whole,’ which means they receive back any accruals used, as well as any back pay.”
Most of the time, by the time a decision is received on the expedited review, a member has been off the payroll for three to four weeks. Members must be proactive in their own defense.
“As soon as a member receives notice of suspension and/or a notice of discipline, they should immediately contact their Field Representative who will then forward the information to the Legal Department,” Thorne said. “The member can expect the assigned attorney to reach out to them to discuss the expedited suspension review and it is the member’s decision whether to move forward.”
Information on the MOA can be found on page 110 of the current PEF/State Collective Bargaining Agreement.