The Doctrine of Double Jeopordy in Emloyee Discipline Situations
One of the primary functions of the OPBA is to provide representation to members who are facing possible or actual disciplinary action. Navigating the tangled web of employee discipline can be quite a difficult task. This is particularly true if the employer either ignores, or as is often the case, does not understand, some of the major legal principles involved in employee discipline. One of these concepts is the right to not be twice placed in jeopardy for the same employment offense. Members often feel that they are being penalized more than once for the same set of facts. Within the confines of labor law, sometimes they are being unjustly penalized more than once and sometimes they are not.
CRASH COURSE IN EMPLOYEE DISCIPLINE
Before analyzing just what this “double jeopardy” idea means, it is important to review some basics of employee discipline. All, or nearly all, collective bargaining agreements which cover OPBA members contain some sort of language which prohibits disciplinary action without “just cause.” Just cause is a legal term of art. One arbitrator explains the term as follows:
It is common to include the right to suspend and discharge for ‘just cause,’ ‘justifiable cause,’ ‘proper cause,’ ‘obvious cause,’ or quite commonly simply for ‘cause.’ There is no significant difference between these various phrases. These exclude discharge for mere whim or caprice. They are obviously, intended to include those things for which employees have traditionally been fired. They include the traditional causes of discharge in the particular trade or industry, the practices which develop in the day-to-day relations of management and labor and most recently they include the decisions of courts and arbitrators. They represent a growing body of ‘common law’ that may be regarded either as the latest development of the law of ‘master and servant’ or, perhaps, more properly as part of a new body of common law of ‘Management and labor under collective bargaining agreements.’ They constitute the duties owed by employees to management and, in their correlative aspect, are part of the rights of management. They include such duties as honesty, punctuality, sobriety, or, conversely, the right to discharge for theft, repeated absence or lateness, destruction of company property, brawling and the like. Where they are not expressed in posted rules, they may very well be implied, provided they are applied in a uniform, non-discriminatory manner.
This arbitrator’s last sentence, translated into modern terms, means that the ideas of progressive discipline and the prohibition against disparate treatment in meting out disciplinary actions are actually included into the arbitral theory of “just cause.” While the words “progressive discipline” and “disparate treatment” may never appear in the four corners of a collective bargaining agreement, those requirements are implicit in the contractual requirement of just cause. These are concepts of fairness and reasonableness under a particular set of circumstances.
WHAT IS DOUBLE JEOPARDY?
As law enforcement personnel, the OPBA’s membership is familiar with the criminal law prohibition against “double jeopardy.” The United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Likewise, there is a longstanding labor law prohibition against placing an employee twice in jeopardy for the same employment offense.
Jeopardy attaches in a disciplinary setting when:
(1) The employer imposes discipline for a given offense;
(2) that discipline is either accepted by the employee or the original penalty is not accepted by the employee; AND
(3) the discipline is imposed with the understanding by the parties that it is a final disciplinary sanction.
Once these elements are met, the employer is prohibited from thereafter imposing an increased or additional punishment for the subject offense. The double jeopardy doctrine prohibits employers from attempting to impose multiple punishments for what is essentially a single act or set of acts. For example, one arbitrator held that the double jeopardy doctrine applied where the employer suspended an employee for 10 days while criminal charges were pending against him and then, when he was convicted, sought to discharge him.
The arbitral concept of “double jeopardy” has been explained by one arbitrator thusly:
The key to this arbitral [double jeopardy] doctrine is not the Constitution but rather fundamental fairness, as guaranteed by the contractual requirement of ‘just cause’ for discipline. Thus, when an employee has suffered a suspension for an offense it would be unfair…to fire him before he has committed a second offense.
Just as the requirements of progressive discipline and lack of disparate treatment are read into the just cause contractual requirement, so is the prohibition against double jeopardy. Once an employee has been disciplined and the parties understand that the employer’s action is the final disciplinary sanction, then the employee must be thereafter insulated from disciplinary action solely related to the offending act or acts.
Importantly, double jeopardy does not occur when an employer suspends an employee while conducting an investigation that ultimately leads to the employee’s discharge. Where an employer “suspends the employee, conducts its investigation, imposes what appears to be a ‘final’ punishment, and then imposes additional punishment, double jeopardy exists. Likewise, an employer cannot issue a disciplinary ‘warning’ and later, after deciding more serious punishment would have been preferable (because, for example, the employer fears a third party’s lawsuit related to the employee’s misconduct), impose a harsher punishment.”
Double jeopardy does not trigger when the discipline is imposed with the understanding that it may not be final. For example, an employee is not being subjected to jeopardy twice when he is notified via memorandum that further punishment may be meted out for the subject offense. Additionally, “an employee who was terminated for failing to pass a drug screen and then, after being reinstated under a settlement agreement, was bypassed for promotion for the same reason was not subjected to double jeopardy.”
HOW DOES DOUBLE JEOPARDY RELATE TO THE REQUIREMENT FOR PROGRESSIVE DISCIPLINE?
One may ask, is it not double jeopardy where an employee suffers an enhanced penalty for Offense 2 because of prior disciplinary action taken as a result of Offense 1? The answer is no. Just as it is entirely proper for a court to take a criminal defendant’s prior criminal record into consideration for purposes of sentencing, it is permissible for an employer or an arbitrator to take an employee’s prior disciplinary record into consideration with respect to the severity of a penalty.
An employer has a legitimate and legal right to consider an employee’s record of performance and any prior rule infractions when it is considering how to handle a pending performance issue or rule infraction. Prior discipline may certainly be considered in determining pending discipline, but the sanction related to the pending discipline may not be based solely on past violations for which discipline has already been imposed.
Just as an employee who has a long and good record with an employer would insist on raising his or her positive performance and lack of discipline as a mitigating factor, an employer can raise the opposite as an aggravating factor.
If you or another OPBA member ever feels that he or she is being subjected to multiple penalties for the same set of facts or circumstances, please contact your OPBA representative immediately in order to assess whether the employer is or is not complying with its requirements under the law.
 Elkouri & Elkouri, How Arbitration Works, 6th Ed., Alan Miles Ruben, Editor-In-Chief, American Bar Association Committee on ADR in Labor & Employment Law (2003), citing Worthington Corp., 24 LA 1, 6-7 (McGoldrick, Sutton & Tribble, 1955).
 U.S. Const., Am. V.
 Elkouri supra, at 982, citing Transit Mgmt. of Southeast La., 95 LA 74, 80-81 (Allen, Jr., 1990).
 Elkouri supra, at 981, citing United Int’l Investigative Serv., 114 LA 620, 626 (Maxwell, 2000), quoting U.S. Postal Serv., 87-2 ARB ¶18490, at 5952 (Nolan, 1987).
 Id at 981.
 Id. at 982.
Last Updated (Thursday, 13 June 2013 20:16)