Discipline:

A little informed action can make your job (and sleep) a lot better

May 17, 2010

Stephen Smith, VPHR&LA With thanks to Jim Tuttle, Lee Lambert, and AAG Mitch Sachs

Training goals
De-mystify employee discipline; HRs & supervisors roles Overviews of discipline & progressive discipline Corrective actions v. formal discipline (types of both) Investigations & disciplinary procedures Review/ second-guessing standards

Four mistakes managers make when disciplining employees

When disciplinary actions fail, usually its because a manager has committed one or more of four mistakes.

Adapted from HR on Campus

Mistake no. 1
Ignoring unacceptable behavior in hopes that: a) no one else will notice, b) it will correct itself, and/or c) the employee will eventually just go away
Adapted from HR on Campus

Mistake no. 2
Saving up a laundry list of occurrences in hope that, when added together, they will justify a bigger penalty

Adapted from HR on Campus

Mistake no. 3

Applying rules inconsistently (unfairness)

Adapted from HR on Campus

Mistake no. 4
Applying penalties inconsistently (did I mention fairness?)

Adapted from HR on Campus

Discipline in general
The purposes of discipline include: 1. Provide employees with adequate information about how their current performance, attendance or behavior differs from whats expected 2. Motivate and assist employees in changing their performance, attendance or behavior

Discipline in general (cont.)

3. Enhance employee morale and performance by showing that inadequate performance by fellow employees wont just be tolerated

Discipline in general (cont.)

Rule of thumb: Similarly situated employees should receive similar penalties for similar offenses. (Employees do not have to receive identical penalties, but if all relevant circumstances are similar, the penalties should be similar.) Rule of other thumb: Major differences in situation or circumstances can justify very different penalties.
Adapted from HR on Campus

Progressive discipline
You know what it means: A system that imposes progressively greater disciplinary measures upon an employee whose performance continues to be substandard
Adapted from HRhero.com

Progressive discipline overview (cont.)

Benefits for all:
Gives employee direct notice of unacceptable conduct or performance, and the consequences Gives employee an opportunity to correct unacceptable conduct or performance

Progressive discipline overview (cont.)

Benefits especially for employer:
Gives employer assurance that it has made reasonable effort to obtain the employees best performance Gives employer a written record that will be useful in heading off or defending any arbitration or lawsuit that might result from discipline/ discharge

Progressive discipline overview (cont.)

Disadvantages (?): Must be consistent Must have written documentation Doesnt reward procrastination

Types of misconduct subject to discipline (Pers. Apps. Bd. cases)

Abuse of fellow employees Conviction of a crime involving moral turpitude [inherent baseness, depravity] Excessive tardiness or absenteeism Gross misconduct Incompetence Indolence

Types of misconduct subject to discipline (PAB cases)(cont.)

Inefficiency Insubordination Malfeasance (wrongful conduct by a public officer or in an official role) Neglect of duty Willful violation of published employer rules or regulations Violation of policy

Misconduct subject to disciplinecollective bargaining agreements

WFSE/ HE (classified): No discipline without just cause (29.1) Work nexus required if discipline based on off-duty activities (28.2) SCCFT (faculty): Corrective action shall be progressive and for sufficient cause (Art. XII) Dismissal only after corrective action and for specified sufficient cause (Art. IX.C)

Disciplinary procedurescollective bargaining agreements-1

WFSE/ HE (classified): Must protect employee privacy (29.3) Right to request union representative at investigatory interview or predisciplinary meeting (29.5) Notice & response opportunity before discipline, except reprimands (29.7) Discipline may be grieved (29.9) & usually then arbitrated by AAA (30)

Disciplinary procedurescollective bargaining agreements-2

SCCFT (faculty): Most discipline grievable and subject to arbitration by AAA (Art. XV) Notice and response opportunity before any action re dismissal (Art. IX.D.1) Dismissal hearing before faculty-majority review committee; final decision on dismissal by Board of Trustees (Art. XI)

Disciplinary procedures Unrepresented classified & exempt

Unrepresented classified: WAC 357-40; Personnel Resources Board Administrative exempt employees: individual employment contracts Non-renewal not a panacea (possible claims of discrimination, retaliation, violation of public policy, etc.)

(1) Corrective action v. (2) Formal discipline

Corrective action: where progressive starts Informal? Not appealable? Formal discipline: when corrective action hasnt worked Employee loses pay Subject to grievance and arbitration

Distinguish: Correcting vs. Counseling

Correcting is an FYI factual review of a perrmance issue or concern, to ensure the employee understands what they did was not acceptable. Corrective Counseling is more than that, an expression of dissatisfaction with specific performance

(1) Corrective actionstypes

(AGO)
1.

2.

3.

4.

Oral reprimandexplanation, expectation, warning (recorded) Written corrective action plan-explanation, action(s), warning, acknowledged/ signed Memo of concern/ counselingnot quite a reprimand Written reprimandpersonnel file, grievable by represented employees

Oral/ verbal reprimand

Oral counseling sessions should be documented, by:

a notation on your calendar

an informal note in the employees personnel file, or a regular memo to that file

Documentation generally
When to begin Over- and under-documentation Beware hearsay (non-speaker quoted as proof of the truth of what was said)
Good documentation is: Timely Factual/ accurate Clear and precise Signed and retained

Corrective action writings

A written memo, plan, or reprimand should include at minimum: date and employees name

description of misconduct/ inadequate performance, including date and expectation as appropriate

name & signature of manager/ supervisor taking the action

Corrective action plan (1 of 2)

A corrective action plan should include:
1. A statement of the policy, rule or practice that was violated 2. The steps which the employee agrees to follow in order to correct the problem(s) 3. Any commitments of assistance made by the manager or supervisor

Corrective action plan (2 of 2)

4. The time frame for achieving the improved performance and the consequences of failure. (No further action against the employee for that problem during that period) 5. Language broad enough to include all conduct which is reasonably related to the conduct in question Remember to follow up with further discipline if appropriate

Investigationsgenerally
Goal: Discover all relevant information through a fair process Must be prompt Scope must be appropriate to concern/ allegations, yet thorough Must be objective: Who, What, Where, When, Why & How

Investigationssteps (1 of 2)
Define issue(s)not just fishing Identify potential witnesses/ sequence, available documents and evidence Evidence can be verbal, written, and/or physical; cf. demonstrative Favorite trick: request drawing of a map Witness interviews: plan key questions, use of documents; listen!

Investigationssteps (2 of 2)
Records of interviews: notes, written/ signed statements, recordings? Interview admonitions: NO retaliation KNOWN un-confidentiality??? Report: just facts/ findings (no opinions) Consult with HR? (Role of HR)

Pre-discipline notice & conference

Must notify employee & union of

contemplated discipline (except reprimands) & right to respond Loudermill; WFSE 29.7 Employee gets opportunity to respond (conference default; writing alternative) For conference, be prepared, get to purpose quickly. Be courteous; give employee fair opportunity to have his/ her say.

Pre-discipline conference (cont.)

Pay close attention, but dont argue, apologize, or say too much. Avoid sympathetic comments that might be distorted in later appeal (sorry ...). Take notes. If the employee does not dispute the reason, acknowledges that performance has not been good, or makes any other statement that supports the contemplated action, record this. If dismissal, ask for alternatives?

(2) Disciplinary action--letter

From appointing authority, signed Summarize progressive discipline history (or justification for skipping) but avoid double discipline Specify misconduct; attach documentation? Usually at least 15 days prior to effective date for pay reduction, demotion, or dismissal Notice of right to grieve or appeal

Formal discipline--types
1A. Suspension15/30 day limits? 1B. Reduction in salarylower step in same range for specified time 2. Demotionto different position with lesser salary range 3. Dismissalas follow-up or for extremes 4. Immediate dismissalgood of the service

Suspension

As a general rule, each suspension should be longer than the last.

Termination
Review the personnel file and all relevant documents, including performance evaluations, to determine if the termination is appropriate. Ensure that similarly situated employees have been treated similarly in the past.

Review Standard: Just Cause (1,2 of 7)

1. Did the employer put the employee on notice of the possible or likely disciplinary consequences of the employees conduct? 2. Was the employers rule reasonably related to the operation of the employers business?

Review Standard: Just Cause (3-5 of 7)

3. Did the employer, prior to imposing discipline, determine whether the employee violated or disobeyed an employer rule or the employers expectations? 4. Was there an investigation or factfinding? 5. Did the employer obtain substantial evidence or proof?

Review Standard: Just Cause (6-7 of 7)

6. Has the employer applied the rules consistently to other employees? 7. Was the discipline reasonably related to the seriousness of the employees proven offense?

Lees Golden Rule

Most jurors in an employment case will be asking themselves this question: Did the employer treat the employee fairly? (So whether the employee was treated the way most people would want to be treated may ultimately be decisive.) This simply summarizes other more specific questions:

Golden Rule (cont.)

Was the employee given adequate guidance?

Was it made clear to the employee that what he or she was doing was wrong? Was the employee given a warning about the consequences?

Was the employee treated differently from other employees?

Golden Rule (cont.)

Is the employer now giving a reason for the discipline/ discharge that differs from what the employee was told? Were written procedures followed?
Does the documentation in the personnel file (especially performance evaluations) and available evidence (witnesses?) support the stated reason for the discipline?

Conclusion
Employee discipline de-mystified: Progressive discipline: correction action plus, if necessary, formal discipline Just Cause Fairness General principles and issue-spotting are the keys. (You can look up specifics, or call HR.)