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James (Jay) E. Girvin, Esq.
20 Corporate Woods Boulevard
Albany, NY 12211
Telephone: 518-462-0300
Facsimile: 518-462-5037
www.girvinlaw.com
COUNSELING MEMORANDUM
SAMPLE
TO:
FROM:
DATE:
RE: Memorandum of Counseling
1. The following observation has been made:
• Set forth facts, incidents, and sufficient detail to describe the concern.
2. The following standards will be expected in the future:
• Set forth why the above was wrong (e.g. violated policy, failure to performance, etc.) and
what the specific expectations are for the future for the employee.
3. These standards/expectations are important because of the following impact on the school
environment:
• Set forth why the act/failure has a negative impact on the District, co-workers, residents,
morale of colleagues, etc.
4. Failure to follow the above standards/expectations will result in:
• e.g. additional counseling, forwarding the next matter to the Supervisor/Board for
consideration of discipline.
5. The [District] is available to assist you in the following manner:
• Set forth how you or the District can help, e.g. offer to meet with and explain concerns,
offer list of courses of in-services that might improve the employee's performance, offer to
enter into a professional improvement plan.
Please sign and return this memorandum to _____________ within ______ days. Your signature
acknowledges that you have received a copy of this memorandum. You have the right to submit a written
response to this memorandum which, if submitted, will be attached to the memorandum.
I am forwarding this Memorandum of Counseling to the Supervisor/Clerk for inclusion in your personnel file.
Sincerely,
I have read and received a copy of this Memorandum.
Employee Date
cc: Employee's Supervisor
[Other involved Administrators]
Personnel File
James E. Girvin, Esq.
COUNSELING MEMORANDUM LETTER
TO BE TYPED ON LETTERHEAD)
(Presented to Staff Member at a Meeting with Representative Present)
COUNSELING MEMORANDUM
TO:
FROM:
DATE:
RE: INCIDENT OF: ____________
(Date)
On (date of meeting), you and I met to discuss an incident occurring on or about (date of incident).
Your union representative, (name) was also present. (or, you were offered the right to bring a union
representative, but declined).
On (date of incident), (I observed you or, you reportedly) (describe incident-who, what, when, where).
(I appreciate your honesty in admitting that the incident did occur as described above) (or) (your
version of the incident is __________). (State any prior notification, e.g. verbal warnings, memos, etc.
about this incident or any other incidents of a similar nature that may indicate a pattern of behavior)
Behavior of this type is improper because ____________________. (Make reference to Employee
Handbook, Administrative Regulation, District Policy, and Civil Service Law, etc.) There should be no
recurrence. If there is, you may be subjected to disciplinary sanctions, up to and including discharge, in
the manner provided for by law and/or the collective bargaining agreement.
In order to help you to avoid further problems of this nature, I am directing you to:
1.
2. ___________________________________
3. ___________________________________
Let me reiterate that the purpose of this Counseling Memorandum is to warn you of the serious
consequences of any future incident, and to instruct you as to how to avoid such problems in the future.
This Memorandum should not be construed as a formal accusation, charge, or formal disciplinary action
at this time. Formal disciplinary action based on the issue(s) addressed in this Counseling Memorandum
could take place in the future.
A copy of this Counseling Memorandum will be placed in your personnel file. If you wish to respond or
further clarify the situation in any way, you may submit a written response, which will also be placed in
your file as an attachment to this Memorandum.
Please sign this Counseling Memorandum where indicated below. Your signature serves as an
acknowledgment that you have had the opportunity to review the Memorandum, that you received a
copy, and that you are aware that a copy will be placed in your file. It does not necessarily indicate your
agreement with the contents.
If you have any questions, please feel free to contact me.
___________________ _____________________________
Date Supervisor Administrator
_____________________________
Date Employee Signature
ACTION ITEM FORM
Action Items
Date
Decision
Responsible Party
Follow Up Monitoring
10/9/2019
1
RESPONDING TO PERSONNEL MATTERS
[Best Practices to Use in Dealing with Performance and Conduct Issues]
Presented By:
James (“Jay”) E. Girvin, Esq.
Girvin & Ferlazzo, P.C.
20 Corporate Woods Blvd.
Albany, New York 12211
What Should You Be Doing?
Ensure District has Policies and Procedures (P&P) Manual
P&P needs to include standard provisions such as: General Purpose (P&P does not create employment
contract and if employee covered by CBA, CBA controls)
Operational Policies (hours of work, meal/coffee breaks, time records, computer/internet usage)
Paid Leave
Health Insurance
Social Media
Uniforms
What Should You Be Doing? (continued)
Important for P&P to include Rules of Conduct setting forth examples of conduct which will be considered “just cause” for immediate termination, including but not limited to: Harassment, Weapon Possession, Drugs, Threats,
Disorderly Conduct, Abuse/Damage/Misuse of Property, Theft, Falsification of Records/Reports, Insubordination, Violation of Work Rules, Sleeping on Duty, Offensive/Unprofessional Behavior, Excessive Tardiness, and Abuse of Paid Leave
10/9/2019
2
Ensure District Provides Training to Employees on P&P, Job Expectations
and CBA/Operational Matters
E.g. Sexual Harassment/Discrimination Training
Bullying in the Workplace
Workplace/Department Rules and Expectations
Tools/Equipment
Uniforms
The Supervisor’s/Department Head’s Role
Lead by example
Set the tone and establish the culture
Model appropriate behavior
Provide feedback
Coach, evaluate, and counsel employees
Discipline
The Supervisor’s/Department Head’s Role (continued)
PROVIDE FEEDBACK
Advise/inform Employees of Dep’t Needs
Recognize good work and behavior (positive feedback)
Timely address performance and conduct concerns (advise of expectations)
Avoid taking action which creates grievances
10/9/2019
3
Rules for Preventing Employee Grievances
Do not knowingly violate the contract, handbook or work rules
Honestly let employees know how they are doing their job
Act quickly to dispel rumors to the facts
Correct minor irritations promptly
Encourage and listen to constructive suggestions
Don’t make promises you can’t keep and Keep the promises you make
Rules for Preventing Employee Grievances (continued)
Be visible and accessible to employees
Assign work impartially
Explain reasons for directives and assignments
Be consistent. Explain why/when deviations must be made
Explain reasons for change
Act as soon as possible on requests from employees.
Rules for Preventing Employee Grievances (continued)
Avoid showing favoritism
When giving criticism or discipline, do it in private
Keep employees informed about significant plans
10/9/2019
4
The Supervisor’s/Department Head’s Role (continued)
COACH EMPLOYEES
Timely address concerns with employee performance, attitude, and conduct.
○Get employee’s response
○Engage in problem solving
The Supervisor’s/Department Head’s Role (continued)
When needed, create an Improvement Plan which sets out:
Definition of Problem
Statement of Goals
Intervention Strategies
Resources/Assistance
Sample Indicators of Success
Timeline
Documenting the Interview or Conference with Employee
1) To whom it is directed, who prepared it, the date prepared, and the subject.
2) The time, date and place of the interview or conference along with the names of those present.
3) The purpose of the meeting.
4) A clear description of the employee’s problem areas.
5) The conduct or performance standards required by the employer.
6) A date for the next evaluation conference or a timeline for the next step in the disciplinary process.
7) The employee’s comments, including answers to critical questions, admissions of wrongdoing and commitments made in regard to future performance.
8) The employee has received a copy of the summary or has read its contents and, if possible, that (s)he agrees it accurately describes the interview or conference.
10/9/2019
5
• Compile Evaluations
KEY
Honest and accurate evaluations andnotice to employees of deficiencies inperformance, attitude, and conduct.
EVALUATIONS
DOCUMENT, DOCUMENT, DOCUMENT. The Golden Rule is to be as factual and specific as possible.
10/9/2019
6
Why Do an Evaluation? Morale.
Increased productivity.
Discourage discrimination / wrongful discharge claims / defense.
Starts the “trail.”
Discipline Hearing.
Handbook / Policy / Collective Bargaining Agreement
Performance and Evaluation System
Timely and accurate notice of work deficiencies.
Reasonable opportunity to correct deficiencies.
Advise of consequences, including possibility of discharge, for failure to correct.
Items to be Included in Performance Evaluations
Quantity of Work.
Quality of Work.
Communication with Co-workers / Supervisors.
Knowledge of job.
Application of job skills.
Behavior / Conduct.
Management / Supervisory potential.
Attendance.
Lateness.
10/9/2019
7
Highly EffectiveEffectiveDevelopingIneffective
Should be conducted by individuals with personal knowledge of:
The job requirements; and
The employee’s performance.
Evaluations should provide employees with notice of work deficiencies and notice of what is expected of them in the future. Expectations should be reasonable and realistic.
Employees should receive written recommendations for improvement.
Be specific! Avoid the “halo” and “horn” effects.
Performance Evaluations should measure objective criteria. “Generally doing a good job” is not enough.
Objective
• Quantity of work
• Quality of Work
• Attendance
Subjective
• Job knowledge
• Initiative
• Dependability
• Attitude
10/9/2019
8
Performance Ratings should be applied consistently. Avoids adverse impact discrimination claims.
Performance evaluations should be documented:
Explain deficiency.
Explain performance standard.
Explain consequences for failure to meet standard.
Establish a paper trail.
Provide employees with an opportunity to agree with or contest their evaluations.
Maintain continuity throughout the municipality (or, at least, within each department) to ensure consistency.
Provide employees time to correct deficiencies.
Helpful Hints for Evaluators Before drafting a report, review the employee’s personnel file and all
supervisors’ files relating to employment.
Recap prior oral counseling matters in written evaluation.
Review evaluation form – “needs improvement” in narrative portion.
Be consistent with factors used and the application thereof.
Promptly review / investigate problems / concerns.
Maintain confidential nature of evaluations Don’t tell employees how they compare to others. Don’t discuss evaluations with other employees (libel, slander, privacy).
Evaluator Pitfalls
• General conclusions not based on specific facts.
• Attitude.
• Overrating Performance.
• Rating only most recent performance.
• “Halo” effect / “Horn” effect.
10/9/2019
9
• Counseling Employees to Get Them Back on the Right Track
COUNSELING MEMORANDUM
Consistent, objective, honest and thorough documentation of the “big stuff” and key conversations.
Big Stuff: counseling and other conversations that could be important in the future regarding permanent status, discipline, pay, permanent status, transfer, promotion, demotion, etc.
Key Factors Be prompt.
Be open.
Keep the documentation.
Limit access to the documentation
Be honest.
Stick to the facts, and in particular, “work related” facts.
Verbal counseling is not worth the paper it is NOT written on.
Remember that documentation can be a double edged sword.
10/9/2019
10
Options in Responding to Personnel Issues
clerical assistant to custodial duties)
Discipline MattersEvidence Administrators and Supervisors Can Help
Develop/Gather For Discipline Matters
1) Business Records
Attendance Records
Evaluations
Training/Conference attendance
Staff meeting notes/agendas
Prior counsel
Involvement in other discipline
Codes of Conduct
Discipline Referrals
Evidence Administrators and Supervisors Can Help Develop/Gather For Discipline
Matters (continued)
2) Complaints
Administrators/supervisors
Customers/clients
Staff
10/9/2019
11
Evidence Administrators and Supervisors Can Help Develop/Gather For Discipline Matters
(continued)
3) Witness Statements / Interview Notes / Recorded Testimony
4) Photographs/Diagrams
5) Examples of poor work
6) Communication to employees
7) Relationship building/buttressing witnesses
8) Confidentiality / Privacy Concerns
What Types of Conduct Generally Requires Investigation?
Employee dishonesty, fraudulently obtaining certification
Conviction of felony or crime Drugs and Alcohol Sexual Misconduct (including harassment) Theft/Embezzlement Employee’s alleged inability to work Inappropriate behavior in workplace Exam / Tests integrity issues Work rules violations Use / Misuse of Sick leave
What Types of Conduct Generally Requires Investigation? (continued)
Incompetency
Poor rapport with co-workers, residents
Insufficient communication with co-workers and/or supervisors
Attendance / lateness
Irrational job performance
Inappropriate work atmosphere
○ Refusing to address / respond to clients, residents
Failure / Refusal to work with teams
10/9/2019
12
Investigating Employee Misconduct
A. General Guidelines:1) Conduct thorough and prompt investigation.
2) Do not presume guilt. Be open-minded.
3) Apply an objective third-party point of view.
4) Take the complaint seriously.
5) Set professional tone for the interview and try to put witnesses at ease.
6) Gather facts; don’t make judgments. Get answers to: who, what, when, where, how and why
Investigating Employee Misconduct (continued)
B. Who Conducts the Investigation?
1) Supervisor; or
2) Private Investigator; or
3) Attorney; or
4) Police Involvement
Investigating Employee Misconduct (continued)
C. Confidentiality---Don’t Promise !!!D. Interviewing Witnesses
1) Make no promises re: action to be taken.2) Conduct individual, not group interviews.3) Make no statements about accused’s character, job
performance, etc.4) Although not legally required, you may want to obtain
parental consent and/or involvement when interviewing children
5) Determine what complainant wants.a) Document complaintb) Obtain and preserve evidencec) Notice to accused employee and opportunity to respond is
PART of investigation, not an afterthought
10/9/2019
13
E. Interviewing Employee Who May Reasonably Be the Subject of Disciplinary Action
1) Right to union representation.
2) Civil Service Law Section 75 requires that the employee be made aware of the right to union representation in any meeting / interview which could reasonably result in discipline in writing prior to the meeting. Err on the side of providing notice. The law allows for the employee to have the meeting re-scheduled if union representation is requested but not available. This adjournment must be reasonable but is not required to be unlimited.
Investigating Employee Misconduct (continued)
New York State Section 75
Section 75 applies to the “removal and other disciplinary action” concerning certainclassifications of civil service employees for incompetence and/or misconduct.
The “discipline” specified under Section 75 is limited to one of the following: A reprimand. A fine not to exceed one hundred dollars ($100). A suspension without pay for a period not
exceeding two (2) months. Demotion in grade and title. Dismissal.
New York State Section 75
Statute of Limitation
Under Section 75, the employer may not commence a removal or disciplinary proceeding more than eighteen (18) months after the complained of conduct, unless the conduct would, if proven in a court of law, constitute a crime.
10/9/2019
14
New York State Section 75
The municipality must provide the employee with written notice of the proposed disciplinary actions and the charges against him/her. The employee can be charged with either incompetence or misconduct.
The employee is then allowed at least eight (8) days to answer the charges in writing.
The employer, because it is vested with the authority to remove or discipline the employee, is required to hold a hearing, or the employer may designate in writing the appointment of a person to hold the required hearing.
The employer bears the burden of proving the charged incompetence or misconduct. Compliance with technical rules of evidence is not required.
If a person is designated by the employer to hold the hearing, he/she is vested with all the powers of the employer, and shall make a record of the hearing which shall, together with his/her recommendations, be referred to the employer for its review and decision.
The recommendation of the hearing officer is advisory only and can be accepted, rejected, or modified by the employer based only on its review of the record.
New York State Section 75
Employee’s appeal: Civil Service Law Section 76 provides an appeal process for an
employee who is aggrieved by a penalty or punishment imposed pursuant to Section 75.
The process of appeal can be either by (a) application to the state or municipal commission having jurisdiction, or (b) an application to the Court pursuant to Article 78 of the Civil Practice Law and Rules.
On appeal, the municipality’s decision will be examined to determine whether all of the procedures of Section 75 were complied with and if the findings of guilt are supported by “substantial evidence.”
In addition, the penalty imposed will be reviewed. However, the penalty will generally only be modified if it is “grossly disproportionate to the offense(s) or shocking to the conscience.”
“Just Cause” Standard – 7 Step Test
1. Did the employer provide the employee with forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?
2. Was the employer’s rule or the managerial order reasonably related to the orderly, efficient and safe operation of the employer’s business and the interests of the District?
3. Did the District, before administering discipline, make an effort to discover whether the employee actually did violate or disobey a rule or order?
4. Was the employer’s investigation conducted fairly and objectively?
10/9/2019
15
“Just Cause” Standard – 7 Step Test
5. During the investigation, did the employer obtain substantial evidence or proof of the employee’s guilt?
6. Has the District applied its rules, orders and penalties even-handedly and without discrimination?
7. Was the degree of discipline administered by the employer in a particular case reasonably related to:
- the seriousness of the employee’s proven incompetence, misconduct, or offense; and
- the record of the employee in his/her service with the employer?
Concluding Thoughts
Effective documentation of employee incompetency and misconduct can and will result in serious penalties up to dismissal under the law. The processes are challenging, but they should not dissuade supervisors from doing the work to document poor work performance and recommending appropriate discipline.
Concluding Thoughts (continued) Honest and accurate evaluations are critical. Timing is (almost) everything. Timely document and address
issues/problems. Understand what motivates litigation. Anticipate legal challenges. Involve qualified legal counsel at the first sign of trouble. The “Ostrich” strategy rarely works. Delaying discipline / corrective action can be dangerous. Affirmatively engage manipulative employees. Consider the benefits of enforcing your EEO policy. Consult the municipality’s Policies, Code, Rules, Regulations Contact your supervisors Do not be afraid of “incriminating” information. “Fault” is NOT as important as remedy. . . Prevention. Do not take sides and/or draw conclusions until investigation is complete. Obtain and Record as Much Detail as Possible (who, what, where, when,
how, why)
10/9/2019
16
James (“Jay”) E. Girvin, Esq.
Girvin & Ferlazzo, P.C.
20 Corporate Woods Blvd.
Albany, New York 12211
