This article is part of a series of articles in which Curt Varone addresses questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at spieper@lexipol.com.
Today’s burning question: When administering discipline in the fire service, must discipline for two similarly situated employees for the same offense be the same when circumstances are similar in nature? For example: Employee A is super star: She shows up early, helps others check out their apparatus and equipment after she is done with her own, teaches classes, is the first to start station housework every day, and always does more than is required. Employee B shows up 1 minute prior to shift change, he has to be paged each time we need him (usually hiding in his dorm room), he never volunteers for anything, basically meets the absolute minimum standards and does nothing beyond the absolute minimum. In other words, we have a great employee in A and a below-average employee in B.
Both employees have never been late, but each show up late respectively within a week of each other. First, should the punishment be the same, and second, does it have to be the same legally? Two employees, the same infraction, one is stellar employee and the other meets minimum standards.
Answer: You know, I love answering burning questions, especially ones like this that open a multi-level discussion on a common issue. Perhaps without realizing it, your question incorporates part of the very dilemma you are asking about. Notice how you start with a relatively simple question followed by a fact-based hypothetical, but the hypothetical contradicts the very premise of your original question! Are the employees indeed similarly situated or is one a high performer and the other a low performer? It can’t be both! Let me try my best to sort out the answer for you.
Most firefighters work for government and, as such, have certain rights not always enjoyed by private-sector employees. Civil service systems, merit systems and local requirements placed upon government employers typically do not apply to private-sector employers. One of the most common obligations placed on government employers is that employees can only be terminated for cause or just cause. Government employees who can only be terminated for cause or just cause have a right to due process.
Basic principles of due process and just cause dictate that similarly situated employees be treated similarly. Note the use of two very important, but imprecise, expressions: similarly situated and treated similarly.
Both expressions rely upon an evaluation of facts to determine whether indeed two employees are similarly situated and have been treated similarly. Reasonable minds may differ, and our ability to prove that two employees are similarly situated and are treated similarly may be open to debate.
If we assume that two hypothetically similarly situated employees commit the same infraction, they should be treated similarly. The failure to do so could be grounds for any punishment to be reversed because (1) it could be a substantive due process violation (imposing an arbitrary punishment), and/or (2) it could fail to meet one of the seven common requirements for just cause (employer must apply penalties evenhandedly; the penalty must fit the offense). A third grounds for challenge could arise if one of the employees is in a protected class, in which case discrimination or reverse discrimination could be alleged by the employee receiving the harsher penalty.
Now, your hypothetical goes on to explain that, factually, A and B are not similarly situated. A is a high-performing employee and B is not. Whether your characterization of A as high-performing and B as low-performing is accurate and can be proven is another thing entirely. In every such case there are factual questions: Are they similarly situated, and can we prove it?
Some fire departments have the flexibility to take things like an employee being a high performer into account, and some do not. Those that have flexibility must be prepared to establish a reasonable basis for treating two employees differently for the same infraction. Employers can accomplish this by including what we refer to as an administrative insight in the written disciplinary decision. An administrative insight is a narrative explanation about why this particular employee is receiving this particular penalty. There’s a certain amount of skill and training that goes into drafting an administrative insight. Very often human resource professionals and/or legal counsel should be consulted when drafting an administrative insight—it is that important.
Fire departments that lack the flexibility to treat employees differently for the same infraction commonly use what is referred to as a disciplinary matrix to assess penalties. Think of a disciplinary matrix as an Excel spreadsheet listing all the possible infractions in one column, and the penalties to be assessed for a first offense, second offense and third offense in the next three columns. Disciplinary matrixes have a simple advantage: Everyone knows beforehand what the penalty will be. Favoritism, discrimination and bias are (at least theoretically) eliminated.
The downside to a disciplinary matrix is that there is no way to take special circumstances into account. Fire departments that use a disciplinary matrix probably have good reason for doing so; at some point in the past allegations of disparate treatment were leveled and the solution was to develop a disciplinary matrix. If your fire department uses a disciplinary matrix, then the department’s hands may be tied when it comes to punishment, whether employee is stellar or does the bare minimum.
However, some departments have an advanced form of disciplinary matrix that offers a range of possible penalties for each infraction. Such systems risk violating the very premise they were intended to guard against: inconsistencies in punishment. That risk can only be managed by providing a written explanation for choosing a particular penalty from the range provided, which brings us back to drafting an administrative insight.
So to wrap up, similarly situated employees need to be treated similarly, but not necessarily identically. Fire departments can treat non-similarly situated employees differently. In any event fire departments must be prepared to prove that there is a reasonable basis for each penalty imposed. A disciplinary matrix is one way of ensuring we have treated similarly situated employees similarly. Using an administrative insight is another.
