Employer Misconduct Warning Dispute

*.* POST-PROBATIONARY DISCIPLINE *.* Post-Probationary Adverse Employment Action and Performance Improvement Plans (A) No Adverse Employment Action No adverse employment action may be taken against any non-probationary employee except for just cause. An adverse employment action is defined as a warning placed in the employee’s personnel file, a suspension or a discharge. (B) Inadequate or Unsatisfactory Job Performance When the Employer believes that the quality of an employee’s job performance is inadequate or unsatisfactory, such that it rises to the level of just cause for adverse employment action, the following procedures shall apply: *. The employer, working with the employee, shall identify measures that may be reasonably expected to enable the employee to cure the specific shortcomings. The employer shall provide the employee with a written Performance Improvement Plan (PIP) that sets forth a) the specific perceived deficiencies in performance and expectations for adequate performance, b) the measures that the employer and the employee will take to cure the deficiencies, c) a statement that the employee has at least 3 months to correct those deficiencies to a satisfactory level, and d) the consequences of failing to do so. A PIP is intended to serve as a warning. During the period specified in the PIP, and during any good cause extension of that period, it shall be the responsibility of the employer to make reasonable support and resources available to carry out the measures identified, and it shall be the responsibility of the employee to cooperate fully with this approach. The employee may also request a good cause extension of the PIP. *. The Employer will meet with the employee to discuss the PIP during the period established for correcting shortcomings and will advise the employee concerning the progress that is being made. *. The Employer’s obligations under this section do not extend to warnings that address work rule violations including but not limited to absenteeism, lateness, or failure to comply with office procedures, nor to warnings that address behavioral issues that may not lend themselves to such an approach. (See also *.*). *. a. A grievance over a PIP need not be filed prior to the end of the designated period, other deadline provisions notwithstanding. In no event may such grievance be filed later than a timely grievance filed after the employee has been notified of further adverse action to be taken that relies on the PIP. Such a grievance may be pursued Article * – Post-Probationary Discipline * through all steps up to and including the Executive Director level. If the grievance is not adjusted at this level, the Union may notify the Employer of its intention to submit the dispute to arbitration in writing within twenty (*) business days of the Executive Director decision. In no case will the parties proceed to arbitration prior to the conclusion of the period set forth in the PIP. b. At the conclusion of the period set forth in the PIP, the Employer will advise the employee as to whether and to what extent the objectives of the PIP have been met and whether the Employer intends to take further adverse action. If no further adverse action is to be taken that relies on the PIP, the PIP shall be removed from the employee’s personnel file and any pending grievance on the issuance of the PIP shall be withdrawn. If a further adverse action is to be taken that relies on the PIP, the employee shall be given no less than four weeks’ notice of the effective date of the adverse action. The standard procedures set forth in Article * shall apply to a grievance over this action. If the grievance on the further adverse action is not adjusted at the Executive Director level, the Union may submit the dispute to arbitration under the regular or the expedited arbitration rules of the AAA within ten (*) business days of the Executive Director decision, as set forth in Article *.*(B). The grievance over the PIP and the further adverse action shall be consolidated. *. A post-probationary employee will not be discharged for inadequate job performance without having received at least one (*) prior unsatisfactory evaluation pursuant to *.*(F). (C) Employee Misconduct/Gross Misconduct *. When the Employer believes that just cause exists to discharge an employee based on a repeated course of conduct or a single act or omission that does not constitute gross misconduct, the Employer must issue a written warning to the employee, specifying the conduct which constitutes the just cause for discharge. *. When, after a warning under § *.*(C)(*), an employee continues in a course of conduct or acts again in a manner that gives rise to just cause for discharge, or when an employee commits an act or omission that constitutes gross misconduct, the Employer shall give to the employee and to the Union no less than two (*) weeks written notice of its intention to discharge the employee. It is understood that, except in cases of gross misconduct, just cause shall require at least one (*) prior warning for a related offense. The employee shall receive two (*) weeks’ pay before the discharge becomes effective, plus accrued annual leave. In lieu of two (*) Article * – Post-Probationary Discipline * weeks’ notice, the Employer may give the employee two (*) weeks’ pay, plus accrued leave time. *. When the Employer shall claim that just cause based upon gross misconduct exists to suspend an employee, the Employer may do so immediately, for a maximum of five (*) days. *. When the Employer shall claim that just cause based upon conduct other than gross misconduct exists, the Employer must first issue a warning. If the conduct persists, the Employer may suspend the employee for no more than five (*) days after having given one (*) weeks’ notice. *. A written statement of the reasons for the suspension alleging just cause shall be delivered to the employee and to the Union in the notice, or in the case of an immediate suspension, within twenty-four (*) hours after the suspension. Such a written statement may constitute a warning, under this section, if it so states. *.* Warnings; Acknowledgement Any warning issued hereunder, if it is to serve as the basis of a disciplinary action, must show an acknowledgment of receipt by the employee or a statement by an Employer representative that the employee refused to acknowledge receipt. *.* Warnings; Expired & Expunged An employee who has received a disciplinary warning notice shall have such notice expunged from their file, if, after eighteen (*) months from receipt of said notice, the employee has not received any other written disciplinary notice. It is understood that a finding of Sexual Harassment, as provided in LSNYC’s Sexual Harassment Policy, that has not been overturned, will not be expunged during an employee’s term of employment. *.* Approval of Discharge or Suspension Any discharge or suspension must be approved in writing by the Project Director before it becomes effective. *.* Substance Use/Mental Health The parties agree that the performance or behavioral problems of an employee caused by substance use or mental health problems require the Employer to exercise particular sensitivity. Moreover, the Employer recognizes the desirability of rehabilitation rather than discipline. Notwithstanding the above, the Employer reserves the right to discipline for just cause. The Labor-Management Committee shall explore the development of a program in furtherance of this policy. See Section *.* on Reasonable Accommodations for further guidance.*.* TRAINING, SUPERVISION AND EVALUATION *.* Employer Obligations The Employer recognizes appropriate training for all staff members as a fundamental element of its responsibilities. Such training will be developed in conjunction with the Labor-Management Committee and administered by the Employer during the term of this arrangement. Such training will include, but not be limited to, participation in training events run by the Legal Services Corporation to the extent permitted by the Corporation, participation in training events offered by other organizations if the Employer reasonably deems such training appropriate, and participation in training events administered by the Employer, including initial orientation, city-wide training programs, and local office training programs, and local office training and supervision as described in the following provisions. The Employer shall design professional development training tracks for employees at all levels and job titles. *.* Union Obligations The Union recognizes appropriate training as a fundamental element of employee working conditions. It undertakes to participate fully, through the Labor-Management Committee, in the development of recommendations for training events to be administered by or utilized by the Employer, and as reasonably requested, in the implementation of such training events. All employees have the obligation to participate as fully and completely as they are able, and as the Employer authorizes, in appropriate training events administered or utilized by the Employer. *.* Training Committee The LSNYC Labor-Management Committee shall develop recommendations for training events, evaluate training events that are conducted, and consult with Employer and employees concerning training needs. *.* Initial Training and Orientation All employees shall be offered and shall participate as able in initial training and orientation as follows: (A) All Employees *. The employee shall receive within three (*) months of the date of hire a central orientation program concerning the history of legal services, the structure of the national legal services program, the relationship between LSNYC Central and operating legal services corporations in New York City, this contract, health insurance, *(b), the Personnel Manual, administrative procedures, central substantive and administrative resources and the training program. Where several new employees have joined an office’s staff during the month, some of the new employees’ orientation may take place in the second month. *. The employee shall also receive during the first month of employment, a local orientation program concerning the structure, personnel and Article * – Training, Supervision, and Evaluation * operations of the office in which the employee will work, and the program within which that office is located, the community the office serves, the courts in which it practices, and the general nature of the cases handled and the procedures for accepting and handling cases in the office. This program will involve at least four (*) hours of training. Where several new employees are joining the office’s staff within a two (*) week period, this program may be delayed until the second month of employment. (B) Legal Workers *. During the probationary period, all legal workers shall receive regular training and supervision by the Employer. Such training shall include a full introduction to all procedures and practices relevant to the employee’s work in the office. Where additional skills beyond those apparently possessed by the employee at the date of hire are required by the Employer for performance of the employee’s duties to the Employer’s satisfaction, the Employer will make reasonable efforts to provide training to enable the employee to develop such additional skills. However, if the additional skills needed result from increased duties or responsibilities subsequent to hire, the Employer must train the employee in these areas. *. At least twice during the probationary period the Managing Attorney and/or Project Director shall provide the employee with a statement, based upon supervisory contacts with the employee and review of cases, regarding the employee’s performance to date and whether it is satisfactory. This statement shall not be placed in the employee’s personnel file. *. Within six (*) months from the date of hire, the employee shall attend a training program in Basic Legal Process, offered by the Employer. (C) Attorneys and Law Graduates *. During the probationary period, all Attorneys and Law Graduates shall receive regular training and supervision by the Employer. Such training shall include a full introduction to all procedures and practices relevant to the employee’s work in the office. *. At least monthly, during the probationary period, the Managing Attorney and/or Project Director shall provide the employee with a statement, based upon supervisory contacts with the employee and review of cases, regarding the employee’s performance to date and whether it is satisfactory. This statement shall not be placed in the employee’s personnel file. (D) All Casehandling Staff Newly hired casehandling staff shall not be required to handle their own caseload until they have received training and supervision sufficient to adequately handle Article * – Training, Supervision, and Evaluation * those cases they have been assigned. All casehandling staff at trials and hearings shall be attended by a supervisory person during this period. For casehandling legal workers, this shall include, but not be limited to, training in the specific area of law, case maintenance, interview and advocacy skills, representation at administrative hearings (Legal Services Assistant), social work counseling (Social Workers), community outreach, education and organizing. (E) Casehandling Social Workers MSWs – Once a year, the Employer shall provide a comprehensive training program similar in concept to new lawyer training. *.* Post-Probationary Training (A) Attorneys Consistent with the other provisions herein, there shall be a program of continuing legal education for Attorneys in substantive and procedural areas. (B) Legal Workers *. The intent of this provision is to provide non-casehandling legal workers the skills and experience they need to advance to other positions within the program. Accordingly, the Labor-Management Committee shall formulate a course of programs with the specific purpose of training Class I, II and III Legal Workers to fill future job openings for the position of Legal Services Assistant (paralegal). Said training shall be provided at least annually, with the first occurring within eight (*) months of this agreement. This training shall occur during work hours and shall conclude at the end of the work day. Project Directors may limit the number of employees who may attend such training to one per office per course of programs. Eligibility for training shall be based upon seniority at each office and for the purposes of this section seniority shall be determined by treating the Class I, II and III Legal Workers as one group. The non-casehandling legal worker’s performance in the course shall be a factor in evaluating their experience and qualifications under *.*(A). *. Consistent with the other provisions herein, the Labor-Management Committee shall formulate training programs for post-probationary legal workers which will include, but not be limited to: (a) Substantive law survey and types of advocacy relevant to each area; (b) Communication with clients, including interviewing skills, legal ethics (the implications and considerations), how to counsel clients, how to handle emergencies without a lawyer, and what Article * – Training, Supervision, and Evaluation * emergencies cannot be handled without a lawyer, how to handle disturbed clients; (c) Manual skills training (typing, shorthand, speed writing, use of dictation equipment, operation of a mag card typewriter); (d) Continuing administrative and office procedure training, such as legal secretarial training, office administration, bookkeeping, upkeep of a law library, etc.; (e) Negotiating skills and tactics; (f) Legal terminology; (g) Legal research; (h) Evaluation and identification of legal issues; (i) Drafting legal papers. In recognition of newly adopted technologies and consistent with office needs, there shall be a continuing office technology training program with the specific purpose of training legal workers on skills such as: *. Word Processing Mail Merger *. Creation and Use of Excel Spreadsheets *. Navigation of LawHelp Website *. Language Line Assistance (C) Social Workers, MSWs The employer shall work with LSNYC’s Social Work Task Force to develop continuing education plans for MSWs, LMSWs and LCSWs to address their training needs. In light of the fact that licensed MSWs are required to complete * hours of formal continuing education during each licensing period, the Employer shall provide or pay for the trainings necessary to allow those staff to fulfill their post-graduate licensing requirements. The Employer may, in their discretion, approve any New York State Education Department approved trainings in New York City. The Employer shall not deny a request that is necessary to allow staff to fulfill their postgraduate licensing requirements if the sole reason for the denial is that it is outside their practice area. *.* Training in Changed Office Procedures The Employer is obligated to provide full training to all affected employees of new equipment, forms, responsibilities and procedures as soon as they are implemented in any office. *.* Language Training A program of language training in those languages relevant to legal services work shall be provided at the introductory level and for intermediate and advanced conversational courses. Article * – Training, Supervision, and Evaluation * *.* Training Sessions (A) Notice of Sessions Where possible, thirty (*) days’ notice of all training events shall be given. The notice will be distributed to all members of the Training Committee and mailed to the Union office as soon as received by the Employer. (B) Permission and Reimbursement for Sessions *. Neither permission to attend training sessions, nor reimbursement for costs associated with training sessions, shall be unreasonably denied. Denial to attend a session, the subject matter of which does not directly relate to the employee’s duties shall be reasonable if said denial is due to class size or financial limitations or needs of the office. Needs of the office may not be used so as to continually deny access to such training. To this end, and subject to the limitations above, the Employer recognizes the importance of all training whether it is directly related to the employee’s current duties, or to expand an employee’s skills so as to allow for job advancement or the provision of better services and will make necessary workload adjustments to enable participation. *. The terms of § *.*(B)* are applicable to all subject matter in Article *, where applicable. (C) LSC-Sponsored Training Sessions The Legal Services Corporation training events will be utilized to the fullest extent permitted by the Corporation. To this end, any employee wishing to attend such training events and possessing the requisite qualifications established by the Corporation may apply for inclusion in such events. The Employer reserves the right to make reasonable recommendations to the Corporation regarding which employees should attend such events if there are more applicants for the event than the Corporation will accept for training. However, such recommendations shall not be discriminatory and will be done so as to provide the fullest access to all staff. (D) Release Time for Training Sessions Employees shall be granted release time for all training sessions they attend administered by the Employer or the Legal Services Corporation. Any employee (legal worker or attorney) who attends a training session, the subject matter of which is directly related to their current duties, which requires attendance at other than work hours, shall be granted release time equal to the number of hours spent. (E) Diversity and Inclusivity Training It is mandatory for all staff and managers to attend a diversity and inclusivity training. Workloads shall be reduced to provide time for this training. Article * – Training, Supervision, and Evaluation * *.* Supervision and Evaluation Every employee is entitled to regular supervision and evaluation by the Employer of their performance. (A) All employees are entitled, within reasonable limits, to request and receive supervisory assistance regarding problems in carrying out duties of their job at any time. (B) On an annual basis, each employee shall receive from the Employer a statement, based upon supervisory contacts with the employee, regarding the employee’s performance over the previous 12 months and whether it is satisfactory. This statement shall be placed in the personnel file. This obligation cannot be satisfied with the earlier statements mentioned in § *.*. The Employer shall post copies of the evaluation form template on the intranet and distribute them to staff when they are hired and if the evaluation forms are changed. (C) All employees who are responsible for casehandling are entitled to post- probationary reviews of their caseload by a supervisor with reasonable frequency, as required. The purpose of this review shall be to develop recommendations for additional training of the employee, to provide specific advice or training with regard to particular cases, and to give the employee feedback regarding the Employer’s appraisal of their performance. (D) Evaluations of an employee’s performance should, when feasible, be made by a supervisor with reasonable knowledge of the employee’s job performance. (E) An employee shall be given a draft copy of their evaluation and an opportunity to meet with their supervisor to discuss the evaluation before it is finalized. At the employee’s request, the final evaluation shall make note of the employee’s comments. An evaluation shall not serve as a warning. If an evaluation serves as the basis of a warning, a separate warning shall be issued. (F) Any evaluation containing a less than satisfactory rating of an employee’s performance shall inform the employee of the changes required to correct the identified problem. The Employer, working with the employee, shall identify measures that may be reasonably expected to enable the employee to cure the specific shortcomings and shall allow the employee a reasonable period of time to correct those shortcomings. It shall be the responsibility of the employee to cooperate fully with this approach. It shall be the responsibility of the Employer to make reasonable support and resources available to carry out the measures identified. It is understood that the Employer’s obligations under this section do not extend to evaluations that address work rule violations including but not limited to absenteeism, lateness, or failure to comply with office procedures or to warnings that address behavioral issues that may not lend themselves to such an approach. Article * – Training, Supervision, and Evaluation * (G) An evaluation may not be arbitrated absent an adverse action that relies upon the evaluation, the more general provisions of *.* notwithstanding. a. A grievance filed over such an evaluation need not be filed prior to notice from the Employer of intent to rely upon it for an adverse action, other deadline provisions notwithstanding. Such a grievance may be pursued through every level up to and including the Executive Director level. If the grievance is not adjusted at this level, the Union may notify the Employer of its intention to submit the dispute to arbitration in writing within twenty (*) business days of the Executive Director decision. The parties will not proceed to arbitration until and unless an adverse action is taken which relies on the conclusions of the evaluation. b. If an adverse action is taken that relies on the evaluation, the procedures set forth in Article * shall apply to a grievance over that action. If the grievance on the adverse action is not adjusted at the Executive Director level, the Union may submit the dispute to arbitration under the regular or expedited arbitration rules of the AAA within ten (*) business days of the Executive Director decision, as set forth in Article *.*(B). The grievances over the evaluation and the adverse action shall be consolidated. (H) Clinical Social Work Supervision Clinical social work supervision, defined as educational and consultative support for Masters-level Social Workers, shall be provided for the purpose of: *. Deepening the learning of clinical skills, knowledge, and supportive tasks while developing self-awareness; *. Helping the social worker learn how to provide specific services for specific clients; and *. Providing expert case consultation. Clinical supervision shall be provided by a contracted, Licensed Clinical Social Worker. At the request of the employee, clinical supervision shall be provided for up to four (*) hours monthly for staff MSWs. No staff social worker shall be asked to receive clinical supervision from a supervisor who is also providing clinical supervision to a supervising social worker. Clinical Supervision is not intended to mean supervision as commonly defined in labor law. *.* Fundraising for Training The Labor-Management Committee and the Employer shall develop proposals to obtain additional training funds from any source, including the Legal Services Corporation. Article * – Training, Supervision, and Evaluation * *.* Fundraising for Tuition Reimbursement The Employer shall make best efforts to secure funds from whatever source for tuition reimbursement for job-related courses the employees attend and pay for themselves. Within three (*) months of the signing of this Agreement, the Labor-Management Committee shall promulgate an extensive, but not exclusive, list of approved courses and schools. *.* Guide to Referrals The Labor-Management Committee shall prepare and distribute for use by all offices on or before December *, *, a guide as to how, when and where to refer clients. The guide shall be updated as necessary. The substance of this manual shall be part of the orientation process outlined above. *.* Training Grievances Any grievance filed pursuant to the training article shall be filed by a Union delegate or by a member of the Union’s Executive Committee. Failure to provide appropriate training is not a defense to discharge or suspension, except if the discharge or suspension of cause is directly related to the subject of a training event required by this contract and the employee was denied the opportunity to participate in such a training event. Any request to attend a training session must be responded to within five (*) days. Any grievance filed over the refusal of permission to attend a training session, where the grievance would be mooted by the passage of time required for the normal grievance procedure may be filed pursuant to the expedited grievance procedure under § *.* without the stay provision. *.* Evaluation Processes The Employer and LSSA agree that evaluation processes should be consistent across the program. The Labor-Management Committee will develop a proposal to the Executive Director by July *, * to enhance the staff and management evaluation processes. The proposal shall address, among other things, timelines, forms, communication, and meaningful staff input and will be submitted to the Executive Director by July *, *. The employer will make their best effort to implement the enhanced process by October *, *. Researching and analyzing the Collective Bargaining Agreement (CBA) and its specific clauses

The employer has issued a warning under paragraph 9C one which is for misconduct V specific misconduct are workplace unsatisfied fall under unsatisfactory workplace work performance and should in my view be first dealt with under 9B one where the contract says that when the employer believes that the employee has performed so unsatisfactory that it rises to the level of just caused and an adverse action by the employer that is not discharge if they do initiate a pump performance improvement plan which the contract says they should now they have leapfrog over into the realm of misconduct for work performance issues and I believe they are violating the CBA in doing

Yes but could you analyze this under contract Analysis