Discipline:Discipline:A little informed action can make A little informed action can make youryour job (and sleep) a lot better job (and sleep) a lot better

May 17, 2010May 17, 2010

Stephen Smith, VPHR&LAStephen Smith, VPHR&LAWith thanks to Jim Tuttle, Lee Lambert, With thanks to Jim Tuttle, Lee Lambert,

and AAG Mitch Sachsand AAG Mitch Sachs

Training goalsTraining goals

De-mystify employee discipline; HR’s & supervisor’s roles

Overviews of discipline & progressive discipline

Corrective actions v. formal discipline (types of both)

Investigations & disciplinary procedures Review/ second-guessing standards

Four mistakes managers makeFour mistakes managers make when disciplining employees when disciplining employees

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

Adapted from HR on Campus

Mistake no. 1Mistake 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. 2Mistake 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. 3Mistake no. 3

Applying rules inconsistently (unfairness)

Adapted from HR on Campus

Mistake no. 4Mistake no. 4

Applying penalties inconsistently (did I mention fairness?)

Adapted from HR on Campus

Discipline in generalDiscipline in general

The purposes of discipline include:

1.Provide employees with adequate information about how their current performance, attendance or behavior differs from what’s expected

2. Motivate and assist employees in changing their performance, attendance or behavior

Discipline in general (cont.)Discipline in general (cont.)

3. Enhance employee morale and performance by “showing” that inadequate performance by fellow employees won’t just be tolerated

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

Discipline in general (cont.)Discipline in general (cont.)

Progressive disciplineProgressive 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 Progressive discipline overview (cont.)(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 Progressive discipline overview (cont.)(cont.)

Benefits especially for employer:

• Gives employer assurance that it has made reasonable effort to obtain the employee’s 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 Progressive discipline overview (cont.)(cont.)

Disadvantages (?):

• Must be consistent

• Must have written documentation

• Doesn’t reward procrastination

Types of misconduct subject toTypes of misconduct subject to discipline (Pers. Apps. Bd. cases) 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 toTypes of misconduct subject to discipline (PAB cases)—(cont.) 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 discipline-Misconduct subject to discipline- collective bargaining agreements collective 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 procedures-Disciplinary procedures- collective bargaining agreements-1 collective bargaining agreements-1

WFSE/ HE (classified): • Must protect employee privacy (29.3)• Right to request union representative at

investigatory interview or pre-disciplinary 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 procedures-Disciplinary procedures- collective bargaining agreements-2 collective 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—Disciplinary procedures— Unrepresented classified & exempt 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. (1) Corrective action v. (2) Formal discipline (2) Formal discipline

Corrective action: where “progressive” starts• Informal?• Not appealable? Formal discipline: when corrective action

hasn’t worked• Employee loses pay• Subject to grievance and arbitration

Distinguish: Correcting vs. Distinguish: Correcting vs. CounselingCounseling

CorrectingCorrecting is an “ is an “FYI” factual review FYI” factual review of a perrmance issue or concern, to of a perrmance issue or concern, to ensure the employee understands what ensure the employee understands what they did was they did was notnot acceptable. acceptable.

Corrective CounselingCorrective Counseling is “more than is “more than that,” an that,” an expression of dissatisfaction expression of dissatisfaction with specific performancewith specific performance

(1) (1) Corrective actions—typesCorrective actions—types (AGO) (AGO)

1. Oral reprimand—explanation, expectation, warning (recorded)

2. Written corrective action plan-explanation, action(s), warning, acknowledged/ signed

3. Memo of concern/ counseling—not quite a reprimand

4. Written reprimand—personnel file, “grievable” by represented employees

Oral/ verbal reprimandOral/ verbal reprimand

Oral counseling sessions should be documented, by:

• a notation on your calendar

• an informal note in the employee’s personnel file, or

• a regular memo to that file

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

Documentation generallyDocumentation generally

Corrective action writingsCorrective action writings

A written memo, plan, or reprimand should include at minimum:

•date and employee’s 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)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)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

Investigations—generallyInvestigations—generally

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

Investigations—steps (1 of 2)Investigations—steps (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!

Investigations—steps (2 of 2)Investigations—steps (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 & Pre-discipline notice & conferenceconference

• 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.

Adapted from HRhero.com

Pre-discipline conference (cont.)Pre-discipline conference (cont.)

• Pay close attention, but don’t 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) (2) Disciplinary action--letterDisciplinary 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--typesFormal discipline--types

1A. Suspension—15/30 day limits?1B. Reduction in salary—lower step in same range for specified time 2. Demotion—to different position with lesser salary range 3. Dismissal—as follow-up or for extremes 4. Immediate dismissal—good of the service

SuspensionSuspension

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

TerminationTermination

• 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 CauseReview Standard: Just Cause (1,2 of 7) (1,2 of 7)

1. Did the employer put the employee on notice of the possible or likely disciplinary consequences of the employee’s conduct?

2. Was the employer’s rule reasonably related to the operation of the employer’s business?

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

3. Did the employer, prior to imposing discipline, determine whether the employee violated or disobeyed an employer rule or the employer’s expectations?

4. Was there an investigation or fact-finding? 5. Did the employer obtain substantial

evidence or proof?

Review Standard: Just CauseReview Standard: Just Cause (6-7 of 7) (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 employee’s proven offense?

Lee’s Golden RuleLee’s 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.)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.)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?

ConclusionConclusion

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.)