Rice case holds lessons for all employers

By Steve Lash
The Daily Record Newswire

While the sports world might question what the NFL investigators knew and when they knew it, the lesson for employers from the Ray Rice saga is clear: They must do their due diligence before taking disciplinary action against employees, lest evidence later emerge showing the initial discipline was more lenient than deserved.

In the usual collective-bargaining setting, employers often do not get a second chance to discipline for the same offense.

"Whenever an employer is contemplating an adverse action against an employee - be it termination, suspension, whatever - the employer should conduct a full investigation before taking action," said attorney Richard G. Vernon, who advises management in employment matters. "Once you have made your decision and imposed it, you can't go back and impose something else based on the same facts. I think arbitrators will go that way."

In the case of Ray Rice, the National Football League initially suspended him for two games after seeing a surveillance tape showing him dragging his unconscious girlfriend out of an elevator at an Atlantic City casino in February. The league increased that punishment to an indefinite suspension Monday following the release of surveillance footage of Rice punching his now-wife Janay Palmer into unconsciousness in that elevator.

Also on Monday, the Baltimore Ravens terminated the team's contract with Rice, a star running back.

The coinciding actions of the NFL and Ravens arguably runs about of the "One Penalty" provision of the league's collective bargaining agreement with the NFL Players Association, which states that "the commissioner and a club will not both discipline a player for the same act or conduct."

The league's action of increasing its own penalty on Rice may also violate the collective bargaining agreement, which like many union contracts could be interpreted to bar additional discipline of an employee for the same offense, according to Vernon.

Another management attorney, Gil A. Abramson, said he doubts an implied presumption against additional punishment would hold up in a case where later-discovered evidence makes clear the severity of the offense.

"It's not like in criminal court that, once tried, you cannot be tried again," said Abramson, of Jackson Lewis P.C. in Baltimore. "It's not the same under a union contract."

Employers may "revisit" the discipline they meted out and, based on new evidence, say "Forget the two-week suspension. You're fired," Abramson added. "If the union doesn't like it, they'll file a grievance."

However, like Vernon, labor lawyer Francis J. Collins said that arbitrators often accept a union's "double jeopardy" argument against imposing an additional sanction on an employee who has already been disciplined for the same episode.

"There is certainly a strong argument in the labor arbitration world that once discipline has been imposed that's the end of it," said Collins, of Kahn, Smith & Collins P.A. in Baltimore.

That argument is even stronger with regard to public employees, as the presumption against double jeopardy is rooted in the Constitution's prohibition on the government trying a defendant twice for the same offense, he added.

Public-employment contracts also often contain time limits for investigations of civil service employees, either in the body of the agreement or by statue.

Unsympathetic employee

However, Collins said an arbitrator might be unlikely to conclude that the NFL was wrong to increase its punishment of Rice in light of his "outrageous conduct" in the elevator.

"This is a classic case where bad facts make bad law," Collins said.

The union does not have "a very sympathetic employee" in Rice, he added. "You might have an arbitrator say that, because of the facts, he's not going to consider the double-jeopardy argument."

Dionne L. Koller, who directs the University of Baltimore School of Law's Center for Sport and the Law, said the league's increase of Rice's punishment to indefinite suspension could pit NFL Commissioner Roger Goodell's often cited authority to act "in the best interest of the game" against the union's potential contention that Rice's punishment was "standardless."

"I'm wondering what the player's union is going to do," Koller added. "The issue is whether the union will touch this given the nature of the offense."

Vernon, the management attorney, predicted the NFL Players Association will not press the double-jeopardy argument in Rice's case.

"The union doesn't want to be perceived as promoting domestic violence," Vernon said. "I almost suspect it is too hot a political issue for them to file a grievance over."

From an employment-law perspective, the NFL acted too rashly in the first instance by imposing a two-game suspension before the league's investigation was complete, Vernon said.

Rather, the NFL should have suspended Rice based on its initial viewing of the surveillance video and announce that it reserved the right to increase the punishment pending completion of the investigation, added Vernon, of Lerch, Early & Brewer Chtd. in Bethesda.

The same holds true for other private employers, Vernon said, adding that they should not fire an employee before conducting an investigation.

Employers could face liability if they resort to the "frontier justice of 'we'll hang him and then we'll give him a fair trial,'" he said.

"Do your investigation and then take final action," Vernon added. "An interim suspension is fine if you want to protect the workplace in the meantime."

Published: Tue, Sep 16, 2014