Attorney Ryan Wins Reinstatement For SEIU 509 Member Terminated Without Due Process

Employees in the private sector generally can be fired at will. These employees generally don't have a right to be told whether they are satisfactory or what will happen if they do not improve. They also don't have a right to have the employer consider their perspective prior to termination. But private-sector employees represented by a union, such as SEIU Local 509, usually have a right to due process. Union-represented employees generally have a right to know, in advance, that a failure to meet the employer's expectations of performance could lead to discipline or termination. Plus, due process requires that the employer to provide notice of allegations against an employee and give the employee a chance to respond. A failure to provide due process, even to an employee who failed to meet performance expectations, can result in the termination being reversed, at least in unionized settings.

In this case, a supervisor repeatedly told the employee that the employee was not meeting expectations. But it never disciplined the employee for poor performance, or even notified the employee that significant discipline could result if there was no improvement. At most, the supervisor said that the employee would face a reprimand or a corrective action plan.

Frustrated with the employee's performance and failure to appear for voluntary meetings, the Employer simply terminated the employee before giving the employee a chance to respond. SEIU Local 509, represented by Attorney Jillian Ryan, challenged the discipline.

The independent arbitrator reversed the termination, finding that while some discipline was warranted for poor performance, termination was not. The Employer was obligated to tell the employee that continued poor performance would result in significant discipline, including termination, and to listen to the employee's response to allegations of poor performance. The Arbitrator ordered that the employee be reinstated and the termination be reduced.