Discipline: Discipline: Government Employees Government Employees

(that includes you) and the (that includes you) and the “Special Rules”“Special Rules”

Puiggari & Associates Michele Puiggari

regional 2013

WHY?WHY?• You are the SUPERVISOR• Employees aren’t perfect• Wrongful Discharge Act• Statutory requirements to terminate employee

• GOVERNMENT employee get JUST CAUSE• MACO permission• Failure to Effectively Discipline • Creates problems• can be expensive

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2 Requirements Need to Work With

1)Wrongful Discharge Act2)Just Cause—Government Employees

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Wrongful Discharge ActWrongful Discharge Act

Unlawful to terminate

(a) because it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment (6 months is presumed) ; or (c) the employer violated the express provisions of its own written personnel policy.

• ISSUE: Still follow rules if terminate during probationary period—Can still have discrimination suit.

• Act limits damages to employer. But must follow provisions of ACT. • Must have Grievance procedure for discipline and give it to employee

within 7 days of termination. 4

DischargeDischarge

“Discharge” : resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. Includes constructive discharge

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Just Cause

“Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.

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WHY-Continued• To Suspend/Terminate an Employee MUST show Employee had notice of

issues and chance to fix

• Most Counties have policy that states employees can only be discharged for good cause

WHY? This just seems to make it harder to discipline, terminate, get the work done

• Public Sector Employees• Property Interest in Employment• Must be demoted, suspended, terminated for just cause

only• Union Members: Follow CBA (witness if disciplinary,

grievance, etc.) 7

Why Else Is It Necessary

• What do you want to know and be able to do when your boss is not happy

• If NOT written down• Did Not happen• Credibility question between you and employee

• Policy is Contract in Montana• What is your counties’ policy? Discipline and complaint resolution• CBA is contract—must be followed

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Additional Reasons Why• MACO • Must get permission to terminate employee to ensure coverage

if litigation• Will require extensive proof just cause was used

WHY?• Employees have the absolute right to some type of process

before the effective date of suspension or discharge. • Chance to tell their side• Opportunity to fix

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How to Be Effective

•Use Just Cause (meets WDA requirements also)

•Document File at Every Step• Best Defense: Call HR BEFORE you hit the wall or you have to

start over because MACO will not support termination • (you will just be mad , not effective and will be still not be able to

terminate them)

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Documenting File

• YOU ARE THE SUPERVISOR—ACT LIKE ONE. EMPLOYEE IS NOT YOUR FRIEND

• NO one ever feels discipline is constructive • be professional and stick to facts

• Don’t let employees skate• if don’t discipline becomes acceptable. • longer you let it happen harder to correct

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Documenting• Written• Put in facts, not opinions• shorter is better• Have employee sign (witness if needed)

• E-mail• Way to recap verbals• Way to record without seeming to• Use statement that if don’t agree let me know

• Other ideas

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Practical Suggestions• Check 7 steps of just cause BEFORE act• Run it by another person. HR or other supervisor• Before termination: • get approval, see if they would be better fit elsewhere in co, check

sideways (other depts) • Discipline/Termination meeting• Supervisor and HR only (no third parties unless Union rep). Do not

need to permit attorney even if employee demands.• Supervisor communicate decision, HR person everything else.

Prepare talking points. Have final pay check (unless policy says next pay period)

• In person • Midweek seems to be best time, Friday is second choice. End of day.

Never prior to major holiday if possible• Dignity, respect and be compassionate. Keep it short. Treat them

the way you would want to be treated.13

Just Cause• Definition: Is the Proposed Disciplinary Action Firmly and

Fairly Grounded

• Your opinion is not enough!• If it is not written down it did not happen

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How Establish Just Cause

• Use 7 Step Process to Analyze whether discipline is for Just Cause• 7 Steps are practical and effective way to

determine if proposed disciplinary action is firmly and fairly grounded

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7 STEPS• Notice • Reasonable Rules & Orders • Investigation • Fair Investigation • Proof • Equal Treatment • Penalty

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Step 1-NOTICE• Do they know the rule (what is expected) • How do they know rule (orientation, e-mail etc.)• Is it documented (signature page, receipts) • Employer’s burden to prove

• Have they been told consequences of his actions? • Verbal, written warnings (signed by ee or witness)• “I acknowledge receipt of a copy of the foregoing warning. My

signature does not mean I agree with the discipline”.

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Step 2- Reasonable Set of Rules

• Is Rule or order reasonable?• orderly, safe operation business-expected

performance • Is Rule or order Relevant to co. goals.

• What about these rules• Dress code

• hair length, short skirts (public or not)

• Can’t criticize department• Safety clothing 18

Step 3 and 4-Fair Investigation• Before administering the discipline • Investigate: always talk to employee, witnesses if any (other

employees, customers, documents, photos) did they in fact violate or disobey a rule or order?

• Be thorough: Gather all facts. What would you want employer to know if it was you.

• Be timely• Don’t have immediate supervisor do investigation• Be objective. If you can’t be have someone do investigation that

can be!

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Investigation• Class Problem• Employee asks for FMLA leave.• 3 weeks later manager goes to HR and wants to discipline

employee for performance issues: late on subdivision plan approvals and yelling at subordinates. Employee has been in job for 3 years all good evaluations.

• What do you do , what do you want to know

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Step 5-Proof of Offense• Is there substantial evidence to prove guilt? • Are your conclusions unbiased and based on

facts• Use grid• Was investigation done in good faith

• This not a criminal case.

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Step 6-Equality• Have the rules or orders been handed out evenly and without

discrimination? • Rules must be applied justly

• Are all employees operating under the same set of rules.• Are all employees equally in order to apply the rules when

administering discipline

i.e. don’t blindly apply same rule to all situations - managers/supervisors are expected to exercise judgment ---So can impose lesser discipline on model employee and greater discipline on problem employee for same offense. If you have the appropriate documentation in the file—you can impose more serious discipline.

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Step 7-Appropriate Discipline

• Did the punishment fit the crime?

• The level of discipline issued must be reasonably related to 1) the severity of the proven violation and 2) the employee’s service record.

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Class Problem• Employee in DA’s office Running for Justice of the Peace• While at work, disruptive, lies, doing campaign work while at

work, • No discipline in past or now (because employee would have been

a judge DA had to go before)• After looses campaign, supervisors disciplines, employee grieves

discipline• Says it is because she ran for office.

• What issues do you see?• What do you want to know?• What should supervisor have done?• What could supervisor have done?

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Just Cause or Not?

A “no” answer to one or more of the questions (Steps 1-7) means that just cause either was not satisfied or at least was seriously weakened in that some arbitrary, capricious, or discriminatory element was present.

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Actions• If Have Just Cause• Discipline employee

• If Do Not Have Just Cause• Establish Why and remedy

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