By: Attorney Benjamin Taylor, Attorney at Law

There are a number of developments that CSEA members would do well to take notice of. The past few months have seen a number of changes take place, and this affects all of our members. The primary change that will ripple across the City is the attendance policy. To begin, a general review of a few policies may be helpful. First, employee AWOL discipline is being enforced very strictly in a number of departments. You can be considered AWOL under any of the four following circumstances: (1) if you do not report to work and do not call in to report the absence; (2) if you report an absence less than one hour before the start of your shift; (3) if you depart work prior to the end of your shift without permission; or (4) if you take a break without permission.

The one-hour rule has taken many members by surprise since many thought they had up until the start of their shift to call in. Under this rule, if you are going to be absent, you must call in one hour or more before your scheduled start time. This is a very poorly thought out policy that discourages employees from reporting to work. Oftentimes, employees who wake up feeling ill will try to feel better and get to work. Now, since they now must make that decision at least one hour prior to the start of their shift, they are forced to call off. The lesson, at least from a legal and not necessarily public health standpoint, is that if you do not make the one-hour time limit, try to get to work on time and then leave due to your illness. You can even report up to one hour after your shift and only be considered tardy. But if you call in less than one hour before your start time and do not report for work, you risk being charged with AWOL.

The chief change that is newly affecting City workers relates to strict new rules under the Sick Abuse Policy. The prior policy was extremely restrictive and poorly designed; the new policy is nothing short of draconian and immoral. Previously, an employee who exceeded 30 hours of sick time in any rolling three-month period could be called into a pre-disciplinary hearing to review their attendance. At this hearing, an employee would still be able to supply doctor's notes showing a valid excuse and cause for use of the employee's earned sick time. The best practice under this paradigm then, would be to always be certain to obtain a note from your doctor to make sure your absence is not counted against your 30 hours limit. The City deemed this already burdensome policy to be far too liberal in Fall 2015. The new City policy has completely wiped out all reason and medical reality from the situation. From Fall, up until now, and going forward from now, the City will no longer accept or review doctor's notes in considering the Sick Abuse Policy. That is to say, your doctor's appointments, and the notes which would previously have prevented these valid health conditions from being considered against you in the Sick Abuse Policy, are no longer part of the equation. City workers may now utilize no more than 30 hours in any rolling three-month period under any circumstance.

By way of explanation and illustration of this monstrous policy, I will give some concrete examples. If you have a root canal that causes you to miss 8 hours in March, a sick child that causes you to miss 8 hours in April, then catch a stomach flu that causes you to miss two days in May (16 hours), you will for a certainty be stepped up on the attendance policy for Sick Abuse. The fact that your dentist could verify your need of a root canal, and a specialist saw you about a stomach virus and instructed you to remain at home, both have no bearing on the situation. I have expressed concerns in a number of hearings and settings with City officers, and the response is a consistent “schedule appointments for evenings and weekends, and get FMLA if you have a known/ongoing condition.” Time off under FMLA will not be counted against the 30 hours, nor will a City Sick Leave. If you believe you may need to utilize FMLA for a health condition, I would urge you to speak with your doctor and have the FMLA approval completed with Human Resources immediately; retroactive backdating of FMLA to cover time missed after the fact can be messy work and not always successful. Have it approved so you can use it when you need it. From now on, 30 hours means 30 hours no matter what, and there is no entertaining explanations or reality.

I would also like to address briefly the state of the CSEA's relations with the City in terms of discipline. I am currently fighting the City in a case that is before the 8th District Court of Appeals. In this case, I have made it a point to assert that the CSEA is wide awake, and we plan to fight any transgression the City makes against us. I have taken a similar stance in my approach to pre-disciplinary hearings. These hearings are in place because City workers have a right to have their voices heard before they may be disciplined. The City has started to try to turn these hearings into mini-courtrooms; they call workers into the hearings, allow them to give their statements, and then begin to behave like a prosecutor on cross-examination. They spring new accusations; they try to dispute the contentions workers have given, and present surprise evidence that was never mentioned in the charging papers. This serves to turn what is supposed to be the worker's chance to have his voice heard into a fishing expedition and faux-trial. My stance has been that whenever I sniff that one of these situations is possibly approaching, to explain all options to the member, and to suggest that we short-circuit the City's plans by presenting a written statement at the hearing informing the City that we have no further statement to offer. We will offer our defense and the City can keep its surprise, drama, and intrigue to itself.

Between the honest and vigorous litigation of our appeal, and the strong stance in defending ourselves in pre-disciplinary hearings, I have found that the City has become a bit more careful of what it brings in front of me. Before, I could expect a raft of tenuous and “ticky-tack” disciplinary hearings each month. They would haul people in to bang them over the head and try to shake them up over weak or fabricated charges. What we see now is a marked reduction in these minor hearings, and instead a larger share of more major, but less frequent, charges of discipline. Essentially, the City is on notice that we are not playing games, and they are only swinging the bat when they think they stand a chance of having a hit. This is excellent news for the CSEA as a whole. Our members should not be subjected to the stress and indignity of defending themselves against spurious charges. There are indeed times when mistakes are made and discipline will happen. In these instances, the City knows it will be forced to justify its actions and the CSEA will be fighting to make any possible discipline as minor as possible.

In closing, I hope these updates will be taken to heart. All City employees now live under the specter of an unjust sick abuse policy. Everyone is now one bad luck streak away from being a sick time abuser. If you are aware of the rules before you need to use time, you stand a better chance of finding a way to not run astray of them. Also, while I do not look forward to giving any members a call to discuss pending discipline charges, all members should take comfort in the fact that the City knows there are no more easy marks to go after in the CSEA membership. I am always standing at attention, and we will always make the City fight us for every inch and give you a fair hearing.