Manager's Pocket Guide to Documenting Employee Performance (Manager's Pocket Guide Series)

THE MANAGER’S POCKET GUIDETO

DOCUMENTING

EMPLOYEEPERFORMANCE

by

Terry L. Fitzwater

HRD PressAmherst, Massachusetts

Publisher and/or author make no warranties, express orimplied, with respect to this book and neither assumes anyresponsibility for any legal complaint or action occasioned byfollowing its guidelines. The user assumes all risk and liabilitywhatsoever in connection with the use of or reliance upon thematerials contained herein and there are no oral agreements orunderstandings or warranties collateral to or affecting theunderstanding implicit in the purchase of this book.

Mr. Fitzwater’s book is not intended to provide legal advice, andit should not be viewed as a substitute for obtaining legaladvice. You should always contact an attorney familiar withemployment law to ascertain the lawfulness and legalramifications of disciplinary actions.

1998 by Terry Fitzwater

All rights reserved. Any reproduction in any media of thematerials that appear in this book without written permissionfrom HRD Press is a violation of copyright law.

Published by:

HRD Press22 Amherst RoadAmherst, MA 010021-800-822-2801 (U.S. and Canada)413-253-3488413-253-3490 (fax)www.hrdpress.com

ISBN 0-87425-447-7

Cover design by Eileen KlockarsEditorial and production services by Mary George

➟ This book is dedicated to Barbara,my wife, for her support in all myendeavors and dreams.

My gratitude to John Skonbergat Littler, Mendelson for his friendshipand support in reviewing this material,and to Bob Carkhuff at HRD Pressfor recognizing the potential of thissubject matter and thinking enoughof my approach to publish it.

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TABLE OF CONTENTS

Foreword ..............................................................viiPreface...................................................................ixIntroduction..........................................................xi

The Purpose of the Guidebook .............................xiiHow to Use the Guidebook..................................xiii

Worksheet: Employer Audit to AssessLiability ..........................................................xiv

1. The Essential Definitions...............................1Discipline ............................................................2Discussion...........................................................5Documentation....................................................8Coaching.............................................................9

Worksheet: The Manager’s CoachingSelf-Profile ......................................................11

Due Process.......................................................11Employment at Will............................................12

2. Discipline: The Basics...................................17Recognizing the Need for Discipline .....................17Utilizing a Four-Step Process ..............................26

Exercise: The Case of John Wasastar................31Working Through the Phases ofDiscipline ..........................................................32Providing Quality Feedback ................................42

3. Administering Discipline: The Rules ..........47Disciplinary Ground Rules..................................47The Ground Rules as Legal Safeguards................55

4. The Performance Counseling Session ........59The Purpose of the Session.................................60

Documenting Employee Performance

vi

Session Preparation, Format, andFollow-Up..........................................................61Handling Feedback and Reactions

to Feedback....................................................71Gaining Commitment to Change .........................77

Form: Performance Enhancement Plan ..............785. Documentation..............................................79

Documenting Discipline: Your Primary Goal ........80Options: Letter Format or Action Form ................83

Sample: Disciplinary Action Form: Simplified......84The Letter Format ..............................................86The Disciplinary Action Form............................ 101

Sample: Disciplinary Action Form:Detailed........................................................ 102

The Effective Use of Language........................... 104Exercise: Disciplinary Action Form .................. 109

6. Termination: Procedure andDocumentation............................................ 113Performance-Related Termination ..................... 114Immediate Termination .................................... 124Pitfalls and Pratfalls of Termination................... 129

7. Specific Problems and Solutions............... 133Absenteeism and Tardiness .............................. 134Physical Acts of Violence: Fighting..................... 137Harassment..................................................... 139The Best Solution: People First ......................... 143

Appendices......................................................... 145Appendix A: A Ready Reference......................... 145Appendix B: Optional Exercises ........................ 146

Index ................................................................... 149About the Author .............................................. 165

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Foreword

Employment law in today’s world is ever morecomplex and is continually changing. It is a climatewhich makes it difficult for employers to knowwhat to do in each situation. While no one canguarantee a safe, totally defensible course of actioneach and every time, there are some formats tofollow to improve one’s chances of demonstratingto others, e.g., the courts and arbitrators, what thecompany did and why the company did it. Thisbook will help you clarify and satisfy those goals.

Terry Fitzwater has written a comprehensive guidethat is easily understood, is an effective roadmapto discipline, and can be implemented immediately.His process should help any organization changeunwanted, unproductive behaviors before theybecome potential legal issues.

John SkonbergAttorneyLittler, MendelsonSan Francisco

ix

Preface

THIS GUIDEBOOK acknowledges the efforts of anymanager tasked with giving constructive feedback.If you are such a manager, I salute you, for con-ducting a performance-related feedback session isone of the more difficult tasks confronting man-agement today. It is not made any easier by ourlitigious society, where even an employee who isnon-compliant to explicit instructions, and thusterminated or denied a promotion, can seek legalredress.

The guidebook will not prevent indiscriminatelegal actions. Its primary purpose is to help youdevelop a process to change unwanted work be-haviors before they become a major problem. If thesystem works, there will be no need to concernyourself with legal action. You will have productiveemployees. If an employee does not respond toyour efforts, you will have a well-documenteddefense should you find yourself a party to legalaction.

What you will learn herein is an effective processof discipline and documentation. Some features ofit I learned as an executive in human resources;


x

some I developed out of necessity as the times andlegislation changed doctrines and approaches. It isa process with a proven track record, one I ampleased to share with you.

xi

Introduction

DISCIPLINE. The mention of it sends many man-agers, good managers, into a panic. I can’t tell youhow many times in my career I’ve had conversa-tions about the topic with my management. Theyusually would go something like this:

Manager: Terry, I need to say something to Jim. His performance just isn’t up to par.

Me: What are you going to tell him?

Manager: That’s why I’m here. I don’t knowwhere to start—how to say it to him.I’m afraid of tripping on my own words. I don’t want to say anything that’s going to come back and bite me, or get the company into trouble.

Me: Honesty is the best policy. As long asyou’re upfront and tell it like it is, you’ll be performing your job re-sponsibly. That’s the best advice I can give you.

Manager: Fine. You can help with that. Oneother thing. What do I write? How do I document this thing? I remember


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you once saying that poor documentation is worse than none.

Me: Yes, I did say that. And it’s true. Nowlet’s see what you have to do.

Do the concerns of this manager sound familiar?Have you ever been at either end of a similar con-versation? If so, then you probably have askedyourself the all-too-common question, How canmanagers become more comfortable with, and moreknowledgeable about, administering discipline anddocumenting disciplinary issues?

This guidebook will provide you with an answer tothat question and help you ease the panic. Use itas a basis for training and practice, the keys to thepreparation and confidence needed by any man-ager faced with disciplinary concerns.

THE PURPOSE OF THE GUIDEBOOK

My intention here is twofold:

1. To instruct leadership in a positive, proactiveapproach to discipline, one that emphasizesbehavioral modification and correctiveaction.

2. To equip leaders with a process for docu-menting performance issues, includingsuggested language and formats to use indocumentation.

Introduction

xiii

That purpose is backed by guidance for establish-ing these necessities:

• Clear delineation of positive expectationsand deliverables

• Employee self-discipline through aperformance enhancement plan, or PEP

• A PEPTALK method for gaining employeeagreement

• Development of a coaching leadership style• An understanding of a performance process

to isolate factors for improvement• Identification and implementation of legal

processes for investigation and termination• A system of due process

HOW TO USE THE GUIDEBOOK

Everything in this book is essential to your under-standing of legal, effective discipline and docu-mentation. You need to follow all the chaptersand every step of the processes and formats theydescribe. Do not skip a section. Doing so couldundermine the impact on the employee or weakenyour case should you find yourself involved insome kind of legal action.

Remember above all that you are using these pro-cesses to work toward positive change. This should


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be a consistent message when you are giving em-ployees the constructive feedback they need.

✦ The Five R’s of Change ✦

This simple formula informs the disciplinary approachyou will learn in the following chapters. It underscoresthe need to view discipline as positive change—aperception integral to the successful use of this book.

� Recognize the problem and act on it early.

� Relate the issues to the employee in aproblem-solving mode.

� Retool to resolve the problem throughbehavior modification or skills training.

� Reinforce the reality of the situation byproviding constant feedback.

� Reestablish your relationship with theemployee; be readily available.

THE EMPLOYER AUDIT TO ASSESS LIABILITY

An important preliminary to using the guidebookis the completion of the following worksheet, “Em-ployer Audit to Assess Liability.” A “no” responseto any question signals the need for you to inves-tigate your organization’s current methods fordealing with the issue in question. For example, ifyour answer to “Do you suspend before termina-

Introduction

xv

tion of employment?” is “No,” then you should findout how termination is currently handled, as yourorganization may not be able to demonstrate dueprocess (more about due process will be explainedin Chapter 1). Your answers will provide you witha good measure of your potential vulnerability onthe legal front. The more “no” responses you have,the greater your risk of indefensible actions.

The Audit TeamI suggest that you assemble an audit team andcharge it with the responsibility of investigatingnegative findings and recommending changes. Agood format for the audit work would present eachproblem finding followed by the recommendations.Here is an example:

Question Receiving Negative Response:Do new hires sign a form acknowledging they haveread and understand the employee handbook?

Recommendations:— Establish a new-hire signing policy.— Place at the end of the manual a signature block

acknowledging receipt and understanding of handbook.

— Human resources will place signed document inemployee’s file.

Even if you answer “Yes” to most of these ques-tions, you should use an audit team to ensure youare following through as intended. Be sure to au-dit yourself at least once a year to maintain yourreadiness.


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— WORKSHEET —EMPLOYER AUDIT TO ASSESS LIABILITY

Directions: Read the following questions and check off your answer. A“no” response signals the need for you to investigate company methods.

QUESTION YES NO

1. Do you have a formal progressivediscipline system? ❏ ❏

2. Is there a system to address employeecomplaints? ❏ ❏

3. Is there a method for reviewing thelanguage of policies and procedures? ❏ ❏

4. Do you have an “at will” disclaimer? ❏ ❏

5. Do you review disciplinary actions toensure consistent application? ❏ ❏

6. Do new hires sign a form acknowl-edging they have read and under-stand the employee handbook? ❏ ❏

7. Do employees sign disciplinaryactions and performance reviews? ❏ ❏

8. Do you maintain comprehensive per-sonnel files containing performancediscussions, reviews, and the like? ❏ ❏

(Continued)

Introduction

xvii


(Continued)

QUESTION YES NO

9. Can anyone discharge an employeewithout a review? ❏ ❏

10. Are employment agencies, man-agers, and supervisors trained ininterviewing?

❏ ❏

11. Do you suspend before terminationof employment? Where investigation isnecessary?

❏ ❏

12. Is there a review process for long-service employees? ❏ ❏

13. Does your employee handbook havea list of terminable offenses? ❏ ❏

14. Do you limit those who can be usedas a reference check? ❏ ❏

15. Do you have a release agreement? ❏ ❏

16. Is there a central office or figure toreview all performance reviews forcontent, ratings, strength of message,and so forth?

❏ ❏

(Continued)


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(Concluded)

QUESTION YES NO

17. As an “at will” employer or one withmandatory arbitration, do employeessign a form specifically agreeing toabide by the policy?

❏ ❏

18. Do you train your managers andsupervisors on your disciplineprocess? ❏ ❏

Remember: Any “no” response means that you need to lookinto your company’s methods for dealing with the issue.

Whether your answers were predominantly posi-tive or negative, you will find this guidebook ofvalue. It is designed to present a picture of the en-tire disciplinary process, not just pieces of the pro-cess. It also gives you an updated approach to anissue that has affected businesses and their em-ployees since the day any business decided toopen its doors.

You now know my purpose, and have an idea ofhow to use this book as a management tool. But atool to do what? To help protect the company

Introduction

xix

against frivolous legal actions and to bring aboutpositive change. With that in mind, we’ll now turnto the issue of discipline itself—what it is andwhat it is not—and other definitions essential tolegal, effective discipline and documentation.

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1The Essential Definitions

WHAT IS DISCIPLINE? And what is documentation?If you have only a fuzzy idea of what these twoconcepts mean in an organizational context, don’tfeel bad—you’re not alone. Many managers find itdifficult to define the terms discipline and docu-mention clearly, in a way that sheds light on theirpractical meaning in the workplace. Such difficultyis understandable; however, the lack of clarity isunacceptable, especially for anyone who wants tolearn how to discipline and document legally andeffectively.

This chapter addresses the problem by focusing onthe essential definitions you need in order to fullylearn and use the processes and formats to come.Specifically, we will look at these six terms:

1. Discipline 4. Coaching2. Discussion 5. Due Process3. Documentation 6. Employment at Will

A useful worksheet, “The Manager’s CoachingSelf-Profile,” is also included, to help you gaugeyour strengths and developmental needs in thearea of coaching.


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1. DISCIPLINE

The word discipline has many meanings, somemore positive than others. Most managers whopanic at the thought of administering discipline doso because they immediately zero in on the word’snegative associations. This limited view is unfor-tunate, particularly when we consider that theroot of discipline is the Latin discipulus, whichmeans “learner.” Hardly a negative! And entirelyimportant to our understanding of discipline’spractical application in the workplace.

Because there is so much misunderstandingabout this word’s meaning in an organizationalcontext, let’s take a moment to review the dictio-nary definitions of discipline and to clarify justwhat workplace discipline is not.

The Dictionary Definitions

The basic definitions appear below (see Webster’sNew World Dictionary, Third College Edition). Theelements most significant to us are highlighted inbold italics.

Discipline is . . .

• A branch of knowledge or learning• Training that develops self-control,

character, or orderliness and efficiency

1. The Essential Definitions

3

• Strict control to enforce obedience• Self-control or orderly conduct• Acceptance of or submission to authority

and control• A system of rules• Treatment that corrects or punishes

What Discipline Is Not

Of all the things discipline does not mean in theworkplace, the following are the most important.

Discipline is not . . .

• Chastisement• Embarrassment• Ridicule• Enforcement of a rigid chain of command

I cannot stress enough how such measures haveno place in the organizational use of discipline.They create an environment in which it is virtuallyimpossible for manager and employee to challengeeach other for the betterment of all parties in-volved, including the department, work unit, and


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company. Moreover, they can lead into unproduc-tive discussions, create a hostile environment,and cross the border into illegal action.

Remember: Never use discipline to chastise,embarrass, or ridicule people; and never use it toenforce a rigid chain of command. We wantdiscipline to support a positive work environment,not to create a negative one.

What Discipline Is

Some of you familiar with discipline know there isa school of thought that discipline is notpunishment. You will note I left it off of the list ofwhat “discipline is not.” I did so for a reason. Whilediscipline is not intended to punish, it can beviewed as such by employees, especially in thelater stages of the process. Let’s face reality;termination is punishment no matter how youlabel or package it and despite your best efforts topresent it in a professional matter. However, inthe earlier stages, our goal is to correct issues ofunacceptable behavior or performance. So, asused in this guidebook, and as should beunderstood in any workplace, discipline means be-havior modification through constructive means,and more. Here is our working definition:


5

✦ Our Definition of Discipline ✦

� Behavior modification

� Learning

� Corrective action

� A proactive approach to encouragecompliance to group and organizationalnorms

� An early negative-performance notification

� Joint problem solving

� A motivational tool

Always keep in mind that we want to use disci-pline to modify undesired behaviors before theybecome an issue. It is, in effect, an early notifica-tion system—a catalyst to manager-and-employeejoint problem solving.

2. DISCUSSION

Discussion is a large part of the disciplinary pro-cess you will learn in this book. The verb discusshas two basic meanings, both of which play a rolein the process.

1. To speak about something

2. To write about something


6

The “something” in this case is always the prob-lematic issue at hand; thus discussion focusessolely on that issue. Put simply, the purpose ofdiscussion is to convey to the employee, in clearand objective language, what the problem is, whatbehavioral changes are expected, what the em-ployee can do to make those changes, and whataction will be taken if the employee fails to makethose changes.

Whether you convey this information in written orverbal form, you should be as succinct as possible,remembering the following:

• Objective comments “describe” thebehavior.

• Subjective comments “hide” the behavior.

For example, the subjective comment “You have abad attitude” cannot stand alone as a behavioraldescription; it is too vague. In contrast, the objec-tive comment “Your foul language is inappropriateand unacceptable in the workplace” defines thebehavior in a meaningful context; the employeeknows exactly what must change, and you havean objective measure of change: the foul languagewill stop, or not.

In many ways, discussion is the communicationsbridge that helps the employee cross over intonew patterns of behavior. The stronger the bridge,


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the greater the chance that positive change willindeed occur. Strength in this regard means clarityof expression backed by well-founded reason andobjective motivation. It does not mean force of au-thority or personal aggression.

Disciplinary discussion is never an attack on theemployee; nor, on the other hand, is it ever afriendly little note or chat. Managers need to en-courage problem employees to change, and thereis a personal element to any form of encourage-ment; but the issue itself must be presented in away that emphasizes its importance. The discus-sion, and the issue, must have an impact on theemployee’s behavior.

There also is no debating the issue—no “pros andcons” approach to the subject as is so common inother forms of discussion. If you have reached thepoint where disciplinary discussion is your onlyoption, and if you have correctly prepared for it,then debate over whether there is in fact a prob-lem, or about the pros and cons of having to solveit, will only hinder progress toward your goal. Themost fundamental message of any discussion is“There is a problem here, and it must be solved.”However, keep in mind the concept of dueprocess. Due process here is the productiveexchange of information between manager andemployee to effect positive change. Demonstrative“give and take,” as outlined in Chapter 7, is


8

essential in instances where an investigation isnecessary.

Remember, basic reinforcement theory states thatno behavior or skill will improve until someonegives the employee feedback on the performancedeficiency and instruction on how to change it.Discussion is the tool by which that feedback isprovided.

3. DOCUMENTATION

Documentation is the practice of formally record-ing, in writing, your actions and discussionsthroughout the coaching and disciplinary process.The resulting documents are important not onlybecause they are a reference source for you duringthose processes, but also because they are yourdefense should a question arise about the legalityof your actions.

Whenever you document—put to paper any con-versations related to coaching, counseling, ordiscipline—you need to ensure your notes are anaccurate reflection of the events, actions, anddiscussions that took place. Of course, this efforttakes time and energy, but it is absolutely neces-sary if you are to discipline constructively or to en-sure the integrity and safety of your workplace.


9

If the thought of documention usually makes yourhead spin, rest assured that by the end of thisguidebook it will have a less dizzying effect. Youwill know what you need to document, especiallywhen it comes to disciplinary matters, and how todo it; and you will have a good idea of the kind oflanguage to use in discussion and documentation.

4. COACHING

One of the themes in this guidebook is the man-ager’s role as a coach—a person committed to thewell-being of employees, a person willing to rely onthe skills and experiences of those who work forhim or her. Another definition of coach: a busi-ness partner.

Coaching creates a positive work environment bybuilding mutual trust. It means that the managerprovides employees with the following:

• A committed supervisor-employeerelationship

• Empowerment without fear of failure

• A listening ear and continual probingfeedback to make sure messages are clearand employees understand them

• Leadership availability at all times

• Continual messages of encouragement


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• Diagnoses of problems with mutualsupervisor-employee solutions

A manager who acts as a coach stands a betterchance of successfully disciplining a problem em-ployee, for this kind of manager is apt to detectproblems early on, to act on them quickly, and topossess the trust and respect needed to work wellwith the employee toward behavioral change. It istrue, too, that the employee is more apt to listenwhen the feedback is centered on change and noton negatives perceived as punishment.

“The Manager’s Coaching Self-Profile” worksheet,on the following page, will help you determinewhether you are reluctant to coach or give feed-back. Some managers are slightly uncomfortablewith coaching; others are totally intimidated by it.Knowing your area of development need (signaledby “disagree”) will get you started on strengtheningthem. For example, if you strongly disagree withthe statement “I know how to counsel and coach,”then you might try closing this knowledge gap by:

• Attending a seminar on counselingand coaching styles

• Reading this guidebook very closely

• Observing as someone skilled in coachingmeets with an employee


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THE MANAGER’S COACHING SELF-PROFILE

FACTORS StronglyDisagree

SomewhatDisagree

SomewhatAgree

StronglyAgree

I know how to counsel andcoach.

❏ ❏ ❏ ❏

I know when counseling isneeded.

❏ ❏ ❏ ❏

I’m comfortable in a counselingsession.

❏ ❏ ❏ ❏

I’m not intimidated in acounseling session.

❏ ❏ ❏ ❏

I’m always in control of thesession.

❏ ❏ ❏ ❏

Counseling discussions get toopersonal for me.

❏ ❏ ❏ ❏

5. DUE PROCESS

The principle of due process is another themethat runs throughout this guidebook. What is dueprocess? It is a system that establishes proceduralconsistency. There are two key ingredients as itpertains to any disciplinary system.


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1. The system must establish the employer’sintent to objectively examine thecompany’s philosophy of consistencyconcerning employee-related issues.

2. Due process must allow for employeechallenges of the company’s actions, thatis, for right of appeal.

The disciplinary process you are about to learn,when coupled with a mechanism for employees tochallenge the company’s actions, will assist youwith due process if honestly adopted and followedas a part of your organization’s culture. We willreturn to the important concept of right of appealin Chapter 3.

6. EMPLOYMENT AT WILL

In the comic strip Blondie, Mr. Dithers could fireDagwood at the least provocation and get awaywith it. But is that the reality of today’s workplace?Obviously the answer is a resounding “No!” Thelicense by which bosses like Mr. Dithers could, atone time, fire any employee without cause andwithout due process was backed by the doctrine ofemployment at will. As the name suggests, thisdoctrine states that employment is “at the will ofthe employer.” It has generally survived the times,and appears in some form in most policy manuals(see sample on the following page), but it does notconfer the power it once did.


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Sample: Employment at Will Statement

The company believes in and adheres to thedoctrine of employment at will. Provisions in thismanual should not be interpreted as a promise ofcontinued employment, a guarantee of dueprocess, or a commitment to existing terms/conditions of employment, other than the at willemployment relationship, which can only be alteredby an explicit form signed by the president of thecompany.

Both the company and the employee have the rightto terminate the employment relationship, with orwithout cause, at any time and for any reason.

It is important for you to know how the doctrine isworded in your company’s policy manual and to beaware of any federal or state legislation that wouldhave a bearing on the exercise of the doctrine. Inboth cases, they are deal modifiers to the doctrine.And they are guaranteed to cause anyorganization trouble if managers and other leadersare unaware of them or choose to ignore them.

Let’s say a manager terminates an employee overthe age of 40 without a good reason. A lawsuitmay result even if the company has an at-willstatement, because federal legislation to preventage discrimination is unaffected by at-willemployment status.


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The following are some of the many modifiers toemployment at will.

• Its wording in employee handbooks• Its wording in policy and procedure manuals• Public policy• Americans with Disabilities Act of 1990• Title VII—Civil Rights Act of 1964• Age Discrimination in Employment Act of

1967 (ADEA)• Implied contracts

– job security– just cause– longevity

• Your own sensibilities– If it doesn’t feel right, don’t do it.

Each modifier has its own set of parameters.Unlike the parameters of legislative modifiers,company-related ones can be changed as needed.If you find, for example, that your employeehandbook uses the word permanent to describeemployees, you can and should change it.Someone could argue, and courts have agreed,that such a description sets the expectation forlife-long employment. Replacing the word withregular is the suggested course of action. It isalways a good practice to screen any documentsgiven to employees for this and similar language


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that could “tie your hands” in a disciplinarysituation.

Although an at-will statement is not a defense toall lawsuits, it is still a good idea to make sure itappears in your employee handbook as well aspolicy manual. It does set the parameters ofemployment and, when worded carefully, canundercut an employee’s assertion he/sheanticipated life-long employment, which issometimes an issue in termination cases (anemployer should make it clear that suchexpectations are not realistic). A good place toraise the issue is in your “offer” letter toprospective hires. Place your at-will statement inthe letter. I also recommend that you have eachemployee sign the letter. This acknowledges thatthe employee has been informed of the at-willemployment relationship. The issue can berevised and reinforced at a new hire orientationwhere they can sign a separate agreementacknowledging the at-will employmentrelationship.

2. Discipline: The Basics

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2Discipline: The Basics

HOW DO YOU KNOW when discipline is necessary?What process do you use? Are there any phasesyou should go through? This chapter will provideyou with the answers to these and similar ques-tions about administering discipline. They willhelp you build a firm foundation for dealing withproblem employees and coaching behavior modifi-cation. They are your discipline basics.

Here are our four main areas of concern:

1. Recognizing the need for discipline

2. Utilizing a four-step process

3. Working through the phases of discipline

4. Providing quality feedback

We will look at each area in turn, covering theinformation you need in order to select the rightapproach to the problem at hand.

1. RECOGNIZING THE NEED FOR DISCIPLINE

Let’s begin with a hypothetical situation. Jim, amanager in accounting, is proud of one of his


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hires, Susan. She has been nothing short of ex-cellent since he hired her 10 months ago. Jim de-cides she has performed so well, he’ll promote herto a new position. Two months pass, and now hewonders if the promotion was such a good idea.Her work has not been error free, and in account-ing, perfection is a must. He can’t understand it.He mentioned the problem to her over coffee awhile ago, and her response was “Don’t worry, I’llget it.” But her work hasn’t improved. He decidesto meet with her again. Perhaps discipline is theanswer. Here is how their conversation goes:

Jim: Susan, I’m disappointed. You werecoming along just great.

Susan: I’m sorry to disappoint you. You’vebeen a great boss.

Jim: Am I missing something here? Whatcan I do to help?

Susan: I’m having some difficulty.

Jim: What kind?

Susan: It’s my new audit job.

Jim: But that’s a great position for you. Apromotion for all your hard work.

Susan: I know, and I appreciate the opportu-nity. But I don’t understand the auditprocedures. Auditing is a lot differentthan accounts payable. I’ve never hadtraining in some of its requirements.


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Jim is glad he had the conversation with Susan.Discipline was not the answer. He had totallymissed the signals that she simply didn’t knowhow to do the job correctly, and he could havemade the situation deteriorate further with dis-cipline. He now knows his time is better spent intraining his employee.

This case underscores the importance of learninghow to recognize the need for discipline. It alsohighlights two basic rules of thumb:

• Never administer discipline unless youknow the employee is choosing not to dothe job or after appropriate training stillcannot perform the job adequately.Discipline is not an option if the employeecannot perform because of a lack oftraining or skills—a gap incomprehension—and is willing to learnand is capable of learning.

• Pay attention to your employees: be acoach first, a disciplinarian second.Consider the everyday influences thatfactor into your own behavior, such asthe company rumor mill or your rela-tionship with coworkers; keep in mindthat similar influences factor into youremployees’ behavior too!


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A Gap in Comprehension—or a Gap in Execution?

When confronted with an employee’s performanceproblem, a manager first needs to determinewhether the employee is experiencing a gap incomprehension or a gap in execution. Here’s thedifference:

• Gap in Comprehension: Lack ofknowledge, understanding, or skill thatinterferes with an employee’s ability to dothe job as expected. A person with a gap incomprehension usually wants to performwell but cannot do it. He or she is in the“don’t know zone.”A gap in comprehension should not betreated as a disciplinary issue unless theemployee is unwilling or refuses to learn theappropriate skills for the job.

• Gap in Execution: Lack of desire to do thejob as expected; lack of interest in perform-ing well. A person with a gap in executionusually has the ability to perform well butchooses not to do it. He or she is in the “nozone.”An employee with a consistent gap in exe-cution requires disciplinary action.

Whatever gap you are dealing with, you shouldconsider the everyday influences that factor intopeople’s behavior, and should be certain the gap isnot a brief episode, before you take serious action.


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FIGURE 1. Influence Factors

SOURCE BEHAVIORAL LINKS

Organization Culture, goals, coworkers, rumor mill,empowerment

External Community, media, weather, unions

Home Family, friends, illness, finances

Information Frequency, meetings, media, strategic plans

Management’sAction

Policies, procedures, training, quality ofdecisions, inaction, downsizings

Manager Leadership style, supportive climate,experience, training, open-door policy

Many variables shape our day-to-day behavior

� REMEMBER: WHEN IN DOUBT, ASK! �

Everyday Influence Factors

It is normal for employees to have occasional gapsin comprehension and execution. The everydayinfluences on a person’s work behavior are manyand varied (see Figure 1), and they can have asignificant impact on that behavior. Understandingthem can help you better identify problems andresolve work issues in a timely manner.


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FIGURE 2. Managing the Gap

Remember: we all have “bad-hair days.” Empathywill often go a long way in giving an employee a“lift” and setting behavior back on the routinecourse. Again, be a coach! When in doubt, ask anemployee what’s going on. It will save time andeffort and help you identify a “behavioral link” totargeted change.


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Managing Gaps in Comprehension and Execution

Normal, occasional gaps in comprehension or exe-cution represent the “optimal” state of employeebehavior. You can expect the employee to workout most issues on his or her own. However, thisdoes not mean abdication of responsibility on yourpart. As a coach, you may play a role in helpingthe employee through praise (to keep the em-ployee “on track”) or minor constructive criticism(to put the employee “back on track”). You mightalso find it worthwhile to use training so theseinfrequent periods become authentic rarities.

Gaps of comprehension or execution that remainfor extended periods represent the “actual” stateof problem behavior. These “actuals” signal theneed for direct supervisory action, with the use ofdiscipline or training as interventions. Figure 2shows the optimal state of employee behavior andthe actual states of problem behavior.

Diagnosing Problem Issues

The following flow chart (Figure 3) will help youdiagnose the problem at hand, pointing you in theright direction of discipline or training. Let’s take aclose look, moving question to question.

“Does it matter to you?”

We tend to miss this question in the disciplineequation, for we often let emotions dictate our


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FIGURE 3. Diagnosing Performance Issues: Gap in Comprehension vs. Gap in Execution


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actions. We leap head-on into “fixes,” not ques-tioning or weighing the problem’s relative impor-tance. Do not let emotions prompt you to act on atrivial issue, or you will likely regret the action.

That said, it is important to remember this word ofcaution: triviality is in the eye of the beholder;what is trivial to you may not be trivial to someoneelse. As the chart warns, be aware of precedent ifyou answer “No” to the question and decide to donothing. For example, if you allow a worker to re-turn from lunch late for day-care reasons, othersmay view that practice as tacit approval for themto mirror the same behavior. It’s difficult to arguewith that logic. Also, your approval of an issue mayhave organizational impact if other departmentspoint a finger and ask, “Why are they allowed todo that, but we’re not?” The best way to alleviatethis concern is to talk about it with yourmanagerial associates and ask them questions. Alittle conversation at staff meetings can workwonders toward organizational harmony.

If the issue does matter to you, you need to resolvethe issue. It can be accomplished simply enough byasking, and answering, the next question.

“Can the employee do the job?”

This inquiry leads us to the heart of disciplineversus training. If you answer “Yes,” it’s time todiscuss your expectations with the employee and


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to fully explain, through constructive criticism, theconsequences of non-compliance. If you answer“No,” and the job cannot be performed without theintervention of training, do not discipline. It is themanager’s responsibility to provide the employeewith the necessary tools for success before suchaction is considered.

“Behavior/performance corrected?”

If the employee has met your expectations, praisethe behavior and continue providing the tools forchange, whether they involve information giving,coaching, mentoring, or skills enhancement. Ifyour expectations have not been met, begin thedisciplinary counseling process, but always be onthe alert for changes—look for a positive responseto counseling. If you get it, be prepared to offerpositive feedback to reinforce the positive changeor response you expected. You may very well haveworked your way out of the need for further dis-ciplinary action.

2. UTILIZING A FOUR-STEP PROCESS

Prior to the administration of discipline, a processshould be developed and institutionalized. Everyemployee should be advised of it and how it isused in instances of non-compliance to work ex-pectations.


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I cannot think of one organization, large or small,that does not need a process. The days of Mr.Dithers are long gone. For confirmation of thisfact, you can pick up any newspaper and readabout the latest million-dollar wrongful-dischargelawsuit. So if you don’t have a process, developone. I recommend a four-step process because itallows enough time for change, enough time fordue process. If your company currently has a dis-ciplinary system of less than four steps, you maywant to rethink the system in light of the doctrineof due process. However, if you have less than foursteps but multiple substeps for each major step,you’re probably fine. The question important foryou to answer is, “Can I demonstrate theemployee had ample time for change?”

The Rationale for Using a Step Process

I recommend you use the step process for virtuallyall disciplinary actions (consider exceptions only ifyou are dealing with serious infractions such asfighting and theft). The rationale is simple: judges,arbitrators, review boards, and employees want tosee it. A step process is useful for two primaryreasons:

• It demonstrates a pattern of prolongedinstances of non-performance on the part ofthe employee.


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• It demonstrates the company’s positiveefforts toward change at present and overan extended period of time.

Both help protect the employer should the em-ployee eventually be terminated and seek legalredress.

Labeling the Process Steps

How you label each step is up to you. The processlabeling I find most effective is shown in the first

FIGURE 4. Sample Process-Step Options


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option in Figure 4. Notice the use of the word dis-cussion. Some systems use the word warning.While warning will get the desired attention, itsends the wrong signal. The purpose of disciplineis to change unwanted behavior, not to chastise.

A Word About Suspension

In each of these samples, suspension is an option.I recommend it in any progressive step system, nomatter how you label the steps. To suspend, yousend the employee home for a specified period oftime, not to exceed five days. A good rule of thumbis to use a three-day period. Suspension allowsthe company time to investigate serious infrac-tions such as fighting, sexual harassment, theft,and drug use or sale. It gives you time to prove ordisprove allegations and deal with any lingeringissues and doubts. It also allows cooler heads toprevail in these difficult situations.

When do you use suspension? At any time, and atany stage, when an investigation is necessary. Itcan be used whether or not the employee has aclear record or is on a final.

A Word About Documentation

It is imperative to document your actions at eachstep of the disciplinary process—verbal, written,and final. As mentioned earlier, your documentsare valuable references for you during the processand your defense should any legal problem arise.


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Later we will look more closely at the specifics ofdocumentation; for now, commit to memory theall-important direction, Document!

Deciding on Time Allowances

The disciplinary process should allow time for im-provement, hence the need for several steps. Thetiming between steps will vary depending on theseriousness of the performance issue. The timemust be viewed as adequate for what you have es-tablished as part of the skills change or learning.For example, if employees normally produce 20widgets a week, your performance goal should notexceed that number; otherwise, you may give theappearance of setting the employee up for failure.

Discipline Variability

One essential goal in the discipline process isconsistency. However, discipline is variable. Deci-sions to discipline are shaped by:

• The kind of system in use

• The training one receives in the disciplinaryprocess

• The length of employee service

• Circumstances

• Individual judgment

We will examine such variables in more detail inChapter 3. For now, the point to keep in mind is:


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— EXERCISE —THE CASE OF JOHN WASASTAR

Directions: Read the following case; then circle the dates on which you wouldissue, respectively, a written discussion, a final, and a recommendation fordischarge.

CASE: John Wasastar

John is a distribution employee with three years of average service. He hasnever had a performance issue, although you can remember one day when hedidn’t call in sick according to company policy. Two weeks ago he transferredfrom the second shift to the first shift. Almost immediately he started coming inlate to work. Thus far he’s been tardy six times in the first two weeks.

When you spoke to him about it, he told you he’s been having car-poolproblems and difficulty with the time difference between second and first shift.You issued a “verbal” even though he said, “All I really need is time to adjust.”

TARDY RECORD

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

JAN L L L L L L L

FEB L L L L L L L L L

MAR L L L L L L L

APR L L L L L

MAY L L L L L L L

John was between 5 and 15 minutes late on each date marked “L.” Youissued a verbal on January 10. When do you take further action? (Circle thedates as directed above.)

If x occurs, y may happen—the result can varyon a case-by-case basis.


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The exercise, “The Case of John Wasastar,” illus-trates this point. No two people who work on theexercise will end up with identical results. Notethat a five-month time frame—from January toMay—is used in the case. Most managers willterminate within that length of time if an employeedoes not improve the problematic behavior. If, inapplying this exercise to your own company, youneed more months, you can add them.

3. WORKING THROUGH THE PHASES OFDISCIPLINE

The effective approach to discipline comprises fivephases, all of them equally important. They aresimilar to guidelines, offering you a method thatbegins at the first sign of trouble and ends withchange evaluation. The following should be usedat each step of the four-step process discussedearlier.

Phase I. Search for the facts— Investigate

Phase II. Consider possible actions or alternatives— Deliberate

Phase III. Take the most appropriate action— Adjudicate

Phase IV. Document— Administrate

Phase V. Follow Up— Evaluate


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Phase I. Search for the Facts

This is the information-gathering phase. In mostcases, you will know the whos, whats, whens, andhows of the problem. If not, you will need to in-vestigate the situation, looking for any facts youdo not have. Serious issues, such as fighting orsexual harassment, are usually complex and re-quire a formal investigation, including solidresearch to establish the facts. We will look at aninvestigative process later on, in Chapter 7.

Investigate—The Guidelines

When searching for the facts about performanceissues, be sure to do the following:

� Speak with the employee. Find out therationale behind his or her behavior.

� Review employee records. Does theemployee have prior infractions? Is thisrepeat behavior?

� Review disciplinary guidelines. Whatrules apply to the problem?

� See how the rules have been enforcedover time. What precedent has beenestablished? How have the rules beenapplied in similar situations?


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� Speak with others who know aboutthe situation. Are there extenuatingcircumstances connected to the situation?What don’t you know about?

� Discuss the issue with any formersupervisors of the employee. Is theproblem repeat behavior?

� Document! Document! Document!Record your actions and the information.

The Importance of Precedent

Whether you are dealing with performance prob-lems or more serious issues, you should alwaysfind out how an organizational rule or guideline hasbeen used in the past. This is called precedent,and it can be an eye-opener. Do not ignore it.

Precedent not only gives you specific examples ofhow others have enforced rules or followed guide-lines, but also supports any actions you takebased on those examples. It may give you ideas forhow to deal with the problem at hand, or confirmthe legitimacy of the specific course of action youalready have in mind.

Phase II. Consider Possible Actions or Alternatives

This is the “I need to think about this rationally”phase. Ask yourself the following:


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• What do the facts say?

• Am I comfortable with what was stated tome and by whom it was stated?

• Did I take into consideration past friendshipwith the person as well as past differences?(Either could color or hide the facts.)

• Is the action I am about to take consistentwith company policy, the disciplinaryprocess, and precedent?

Here is the ultimate litmus test for determiningyour overall level of comfort with your decision.Ask yourself: “How would a jury or arbitrator reactupon review of the company’s action?”

Deliberation—The Guidelines

When considering possible actions or alternatives,be sure to do the following:

� Piece the facts together. You have yourinformation; now see what picture you getfrom it.

� Consider relationships of sources. Dofriendships or unprofessional working re-lationships taint the findings?


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� Weigh actions in relation to the dis-ciplinary guidelines. Look at whetherthe punishment “fits the crime.” Makesure the action you are about to take isappropriate considering the offense andthe disciplinary guidelines.

� Determine an appropriate action plan.Ask yourself: what must I detail andcommunicate to the employee to gainagreement to change? How should I do it?

Phase III. Take the Most Appropriate Action

You will need to document the actions you aretaking and your expectations for the future. Youcan use either a disciplinary action form or a letterformat for this purpose—they have the same re-quirements (we will look more closely at this inChapter 5). You must detail your conversations,documenting what happened at each step. Neverassume that a conversation is itself sufficient. Thespoken word can be forgotten or refuted later on;written documents preserve what has been said,and they are difficult to refute. Also, keep in mindthat discipline is confidential. Only those with aneed to know should see the documentation.

Be aware that termination must be reviewed. Your“checks and balances” process should never allowanyone to terminate an employee without proper


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review, whether Human Resources or some othersource is charged with the responsibility.

Adjudicate—The Guidelines

When taking appropriate action, be sure to do thefollowing at each process step.

� Obtain necessary approvals. Most organi-zations require a “one over one” (approvalby the reviewing supervisor’s supervisor) foraction at the verbal and written stages. Asfinal discussion is the step preceding ter-mination, and thus a serious move, youneed to involve a department head, legalcounsel, and Human Resources. Therationale is simple: objectivity is increasedexponentially when reviewed by multipleparties.

� Complete all necessary records. A copyof the disciplinary action form or lettershould be filed by Human Resources.

� Meet with the employee. Discuss theaction you will take, your expectations forimprovement, and follow-up actions andrequirements.

Phase IV. Documentation

I cannot overstate the importance of docu-mentation during all four steps of the disciplinary


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process. Documents such as disciplinary actionforms and letters are an organization’s first line ofdefense in any legal action whether it be a chargeof discrimination, a wrongful-discharge lawsuit, orsome other context in which the company mustexplain its actions. Moreover, time can be anenemy rather than an ally. Your documents willhelp you recall your actions, and why you tookthem, long into the future.

Here are some other reasons why you need todocument your actions, including all discussions,during the process:

• To remember what you said to the em-ployee, and what the employee said to you.This will prevent confusion and help both ofyou define clear, realistic, mutually accept-able goals.

• To demonstrate the setting of measurableand reasonable goals for improvement

• To demonstrate consistency of application.Your documents let employees and thoseoutside the organization know that aprocess is used, and in a uniform manner.

• To demonstrate consistency and objectivity.Your documents let employees andoutsiders know that everyone is treatedaccording to the same standards, and thatthose standards hold firm against subjectiveinfluences such as personal emotion.


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Moreover, it is an essential step to have the em-ployee sign the documentation of the disciplinarydiscussion—verbal, written, or final—and to givethe employee a copy of the signed document. Inthis way, you obtain proof the discussion did takeplace. (Later we will look at what you can do if theemployee refuses to sign.) Any formal disciplinarydocument needs the employee’s signature.

Administrate—The Guidelines

Documentation is an administrative procedure.When documenting, be sure to do the following:

� Choose your words carefully. Poor doc-umentation is worse than no documenta-tion. Take the time you need to be clearand specific about your actions.

� Make sure you are comfortable withhow the documentation is stated. Youmay have to defend your statements. Keepin mind that the document may be subjectto the legal process of discovery.

� Ask the employee to sign all formaldisciplinary documents, and give theemployee a copy of the signed docu-ment. As we have seen, the signeddocument proves the disciplinary discus-sion—verbal, written, or final—did in facttake place.


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� Keep all of your investigative or in-formal coaching notes. These act asgood backup and memory joggers; but beaware that they too may be subject to thelegal process of discovery. They should ac-curately reflect your observations, just asthe more formalized disciplinary documentshould.

Don’t forget these three rules:

❶ Document!

❷ Document!

❸ Document!

Phase V. Follow-Up

How do you know if you are having an impact onthe employee’s behavior? Follow up. Of prime im-portance is the reestablishment of normal workingrelationships. Remember: this is not personal, it isbusiness. Discipline’s objective is the modificationof problem behaviors for the good of both the em-ployee and the organization. Both manager andemployee need to know that and grow from it.

Your primary method of follow-up is meeting withthe employee. A face-to-face conversation not onlydemonstrates your concern about the employee’s


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progress, but also gives the employee a chance toexplain how he or she feels about the process andpersonal progress.

Additional methods of looking at the employee’sprogress include:

• Having the employee write a personal-progress report

• Discussing your perceptions with othermanagers who have come in contact withthe employee, to see if their perceptions aresimilar to yours

The first approach will give you further employee-provided documentation. The second will help youassess your own objectivity about the issue athand.

Evaluation—The Guidelines

When following up the disciplinary process, besure to do the following:

� Look for changes in attitude andperformance. Acknowledge the positiveand correct the negative.

� Decide how you will check on theemployee’s progress, and how often.Set dates for meetings. Observe youremployee at work. Adopt a structuredapproach, not a casual one.


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� Reestablish a normal working relation-ship with the employee. Do not allowdiscipline to affect your work relationship.

� Assess how well you did in thedisciplinary meeting(s). Identify ways toimprove future meetings.

4. PROVIDING QUALITY FEEDBACK

No matter how well-structured a disciplinary pro-cess is, or how faithfully a manager follows thefour-step process and its five phases, performanceimprovement will not occur unless the employeereceives quality feedback. It is the key that un-locks the door to positive behavioral changes.

What is quality feedback? To address this ques-tion, let’s look at feedback from the perspective ofits helpfulness to others. By seeing when feedbackis not helpful, we can better understand qualityfeedback—what it is, and what makes it helpful.

When Feedback Is Not Helpful—Poor Feedback

Universal statements are normally dangerous, butI think it’s safe to say that every manager has re-ceived feedback on his or her performance at onetime or another. But has it always been solid, con-structive feedback? Probably not. I frequently askmy students and business associates about feed-


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back. Their responses, included in the list below,likely reflect the norm in today’s workplace.

Feedback is not helpful when . . .

• It deals with generalities; is not specific• It neglects to offer possible solutions• It is given in the presence of another

employee• It is dishonest• The problem issue is treated with

ambivalence or is driven by obsessiveconcern

• Feedback is sugarcoated or is presented asa bitter pill

• It is based on impossible-to-meet standardsor expectations

• It is delivered with an authoritarian attitude

When Feedback Is Helpful—Quality Feedback

So what is quality feedback? Essentially . . .

Quality feedback is the clear communication ofexactly what the performance problem is andwhat specific changes are needed to resolve theproblem.

The bottom line is, people cannot modify a prob-lem behavior unless they know precisely whatthat behavior is and how it needs to change.


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Also, quality feedback is always grounded in . . .

• Well-supported, objective assessment of theperformance issue

• The established standards and practicalnecessities of the workplace

• Reasonable concern about the issue andrespect for the employee

• Good communication skills, including clearexpression and even-tempered delivery

• Honesty without emphasis on the bitter orthe sweet

• Willingness to coach the employee, andcommunication of that willingness

• The attitude that giving good feedback ispart of one’s job

• The ability to be firm of purpose withoutbeing authoritarian in conveying thatpurpose

A BRIEF RECAP

We now know the basics of discipline, includingthe necessity for:

• A four-step process, to show due process

• The isolation of execution versus comprehension, to help us determine whether to use training or discipline


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• A five-phase process within each step, to deliver consistency

• Good documentation and quality feedback, to track our progress and add definition to our expectations

The basics, by definition, are only the beginning.We will have to tie them together to facilitate thechange we are after; we also will have to groundour actions to ensure consistency over time andfrom manager to manager. The next chapter, onthe rules of administering discipline, will get usstarted in that direction.

3. Administering Discipline: The Rules

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3Administering Discipline: The Rules

SO FAR, we have covered the essential definitionsand basics of discipline. Now it is time to turn ourattention to some of the ground rules that willfacilitate the successful use of discipline. Many arerelated to, and reinforce, directives in Chapters 1and 2; others introduce new concerns and in-structions. Take the time you need to rememberthese ground rules. They are all necessary com-ponents of the task of administering disciplinelegally and effectively.

DISCIPLINARY GROUND RULES

The ground rules are categorized into the follow-ing areas:

• The Need for a Process• The Manager’s Rule of Thumb: A.C.T.• Equal Treatment• Communication of Disciplinary Rules• Open-Flame Analogy• Rule of Relevance• Right of Appeal


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Some areas provide you with a set of behavioralrules to follow, while others inform you of rulesthat should be adopted as part of your organiza-tion’s employment policy and philosophy.

The Need for a Process

As I have mentioned earlier in this guidebook, youmust have a process in place if you are to act con-sistently on discipline-related performance prob-lems. This is one of the most fundamental groundrules of administering discipline. Another basicrule: Make sure anyone who is in the position touse discipline understands the process.

GROUND RULES: PROCESS

➽ Always use a standard process for adminis-tering discipline; if your organization doesnot have one, then develop one.

— A four-step process is recommended,including (1) verbal discussion, (2)written discussion, (3) final notification,and (4) discharge.

— The only exceptions to process areserious infractions such as fighting anddrug use, which require formalinvestigation.

➽ Make sure those who administer disciplineknow the process.


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— That includes understanding the differ-ence between a gap in execution and agap in comprehension, and usingtraining, not discipline, for the latter.

— It also includes understanding themanager’s role as a coach or businesspartner, and fulfilling that role foremployees.

The Manager’s Rule of Thumb: A.C.T.

Coaching means being aware of your employees’actions and providing timely feedback on perfor-mance problems. Example:if someone is tardy for threedays in a row, do not raisethe issue three weeks later;the employee will not un-derstand the importance ofthe feedback and will legiti-mately question your delay.Instead, be quick to ask the employee why he orshe is having the problem. This direct question-ing may be all you need. Only move to disciplineif the issue develops into a “John Wasastar.”

Keep in mind that your role as a coach is integralto the disciplinary process—that throughout muchof the process, you will be drawing more than everon your coaching skills. So remember the A.C.T.rule, and act on it.

A.C.T.

AlwaysCoach in aTimely manner


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Equal Treatment

Employees want to know that no one receivesspecial allowances, that they are all being treatedin a similar fashion. For instance, if two employeeshave tardiness problems, they shoud understandthere is a work rule —“Be on time”—and that itapplies to both of them equally, as well as allother employees; they should also understandthat several violations of the rule will be dealtwith through the disciplinary process.

Now one manager may define several as four in-stances; another may define it as five. A slight dis-crepancy like this is permissible—as I mentionedearlier, discipline can be variable. But the seri-ousness of the offense should carry equal weightfrom manager to manager.

Conduct Considerations: Fairness Equals ConsistencySome organizations, and discipline systems, try todraw a distinction between fairness andconsistency. The belief is factors, such as length ofservice, merit undue consideration when handingout discipline. Do not be led into this trap. Thereason is fairness, as a concept, is open tointerpretation and as a result is subjective. Whatmay be considered fair by management may beconsidered unfair by a jury. To protect yourselfalways equate the two by giving equal weight toboth concepts. You can further protect yourself byeliminating fairness from your vocabulary. As an


51

employer your goal is to always be consistent. Thebottom line is that I would rather debate consis-tency of application than fairness

So here are our ground rules for equal treatmentand consistency.

GROUND RULES: EQUAL TREATMENT ANDCONSISTENCY

➽ Judge all by the same set of standards.

➽ Give thorough training in the standards tothose who counsel or administer discipline.

➽ Apply those standards consistently anduniformly across all functions.

➽ Apply standards without discrimination orprejudgment. Keep discipline impersonal.

➽ Remember, consistency equals fairness.

Communication of Disciplinary Rules

It is very important for each and every employee toknow your discipline process. The best way is toteach it. Train everyone in your four-step process,not just those who administer it, and explain howan employee will logically move through it shouldhis or her performance not improve over time. Passout an attendance sheet for everyone to sign. Thisis part of the “forewarning” portion of discipline.


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GROUND RULES: COMMUNICATINGDISCIPLINARY RULES

➽ Every employee and manager should knowthe rules. Publish them in your employeehandbook and company policy and proce-dures manual.

➽ Train every employee and manager in thefour-step process.

Open-Flame Analogy

Administering discipline is a difficult task; but ifyou have done your job correctly, there is littlereason to avoid the action. In fact, you shouldtreat it as an opportunity to help “turn around” anemployee and save him or her from further actionand possible termination.

The open-flame analogy emphasizes that the em-ployee is the one who violated the rule or chosenot to do the job right (touched the flame), andwho now shoulders the responsibility for change.To the manager, discipline is an impersonalact—nothing more than a logical consequence ofthe employee’s action.

Refer to the analogy whenever you are feeling un-comfortable with the task of discipline. It will alsohelp you keep to the ground rules for consistencyand communication, all of which give the analogyits power.


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OPEN-FLAME ANALOGY

➽ A burn is expected. There is no question ofthe result when the flame is touched.

➽ There is ample notice. The person knewahead of time what would happen if he orshe touched the flame.

➽ The action is consistent. Anyone touchingthe flame is burned.

➽ The result is impersonal. The person isburned not because of personal identity,but because of his or her action.

Rule of Relevance

This is simply a statute of limitations. If an em-ployee maintains a clear record for a pre-set periodof time (e.g., one year), discipline begins again, butat the first step (verbal discussion). More seriousacts, such as fighting, may call for reinstatementat later steps (e.g., final discussion). See yourcompany’s rules for applicability.

Maintain a copy of the disciplinary documentationin the personnel file (I used to recommend tossingit out, but times have changed). It can be used toshow a prolonged pattern of problem behavior ornon-performance should the employee be termi-nated at some point in the future. Seal the copy


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in an envelope, to reinforce for the employee yourcommitment to ignore it if performance improves.

Rule of Relevance

If an employee maintains a clear recordconsistent with a predetermined time frame,any disciplinary notice for the infraction maybe disregarded. It is treated as if it did notexist and the disciplinary process begins witha verbal discussion for any new minorinfraction.

You should ensure the clearly defined time frameis included in the employee’s handbook and thecompany’s policy and procedures manual. It isimportant to demonstrate to employees thatnothing is “carved in stone” if there is positiveresponse to constructive feedback.

Right of Appeal

Employees should be provided with a formal pro-cedure for questioning disciplinary action, espe-cially in a termination situation. Most successfulcompanies state in their policy manuals and em-ployee handbooks, “Any terminated employee willhave the right of appeal to the President of the


55

company on request. The President will review thematter and render a binding decision.” I highlyrecommend this review. It is an example of dueprocess in action, and a must in any disciplinarysystem.

Right of Appeal

If the company does not have a specificpolicy or provision to protect the rights ofan employee, there should be a procedurethe employee can follow to challengecompany action.

THE GROUND RULES AS LEGAL SAFEGUARDS

The ground rules we have discussed, along withthe instructions in Chapters 1 and 2, give you a farbetter chance of avoiding accusations of illegal ac-tions, and of successfully arguing your case shoulda lawsuit develop, than do loosely structured ap-proaches to discipline. They are precautionarymeasures on the legal front as well as sensiblemethods for behavior modification. They cannotguarantee complete freedom from legal action, nomore than they can guarantee 100 percent suc-cess with behavior modification. But they canmaximize


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that freedom, and that success, within realisticboundaries.

Checkpoint: Carroll Daugherty’s Rules

Carroll Daugherty was a practicing labor arbitratorwho emphasized the need for due process in hisdecisions. Other arbitrators referred to dueprocess obligations, but he was one of the first tobring some definition to what a company had to doto satisfy it. The checklist on the next pageincorporates Daugherty’s “rules” as put forth inthe case Enterprise Wire Company, 46LA(Daugherty, 1966).

The following words and phrases get at the heartof Daugherty’s rules and deserve special attention:

• Forewarning— Remember: use a step process.

• Managerial rule— Remember: there must be an avenue

of appeal.


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C H E C K P O I N T : C A R R O L L D A U G H E R T Y ’ S R U L E S

YES NO

❶ Did the company give the employeeforewarning or foreknowledge of thepossible or probable disciplinaryconsequences of the employee’sconduct? ❏ ❏

❷ Was the company’s rule or the man-agerial rule reasonably related to theorderly, efficient, and safe operationof the business? ❏ ❏

❸ Did the company, before adminis-tering discipline, make an effort todiscover whether the employee didin fact violate or disobey the rule? ❏ ❏

❹ Was the investigation conductedfairly and objectively? ❏ ❏

❺ In the investigation, did the “judge”obtain substantial proof theemployee was at fault? ❏ ❏

� Has the company applied its rules,orders, and penalties evenhandedlyand without discrimination? ❏ ❏

❺ Was the discipline administeredreasonably related to the serious-ness of the proven offense and therecord of the employee? ❏ ❏

A N Y N O R E S P O N S E S I G N A L S D A N G E R !


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• Even application of rules— Remember: check into precedent.

• Discipline administered according to theoffense.— Remember: discipline should

fit the issue.

Refer to this checklist whenever you enter thedisciplinary procedure. If you can answer “Yes” toall of these questions, you are in good shape toproceed with your action. Any “no” answer signalsthe need to proceed with caution and, at a mini-mum, to revisit the action. However, a negativeanswer does not necessarily dictate non-action onthe part of your company. Remember: all cases aredifferent and your own good judgment will let youknow if you are acting in what can be termed anarbitrary and capricious manner.

Turn to Daugherty’s checklist whenever you needto assess your judgment and how well disciplinewas administered.

4. The Performance Counseling Session

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4The Performance

Counseling Session

THE PERFORMANCE COUNSELING SESSION is themost important and often least understood part ofinformal coaching and the more formal disciplinaryprocess. The success of this meeting between themanager and the employee, in which verbal dis-cussion of the issue takes place, relies on thor-ough preparation, the delivery of constructivefeedback, active listening, and follow-up. Anyonewho has effectively conducted such a meetingknows that the time and effort required by thesetasks are worthwhile investments. They can meanthe difference between resolving the performanceissue quickly, right at the start of informal coach-ing, thus avoiding a move into the more formaldisciplinary process.

In this chapter, we will take a look at the session’spurpose, whether you are coaching informally orusing the disciplinary process. We will then focuson the more formal disciplinary aspects of:

• Session preparation, format, and follow-up• Handling feedback and reactions to it• Working toward commitment to change


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THE PURPOSE OF THE SESSION

The performance counseling session calls for youto draw on your coaching skills as well as yourcommunication skills. You need to convey to theemployee in clear and objective language . . .

• What the problem is

• What behavioral changes are expected

• What the employee can do to make thosechanges

• What action will be taken if the employeefails to make those changes

In doing so, you shouldgive constructive feed-back and offer as muchencouragement as possi-ble—that is where yourrole as a coach plays avital part in behaviormodification. You wantto get the employee “intune” with you and har-monizing on a mutuallyagreeable course of ac-tion. A useful term forthis approach is peptalk(see display). It will help you remember the im-portance of your coaching efforts throughout theperformance counseling session.

PEPTALK

P erformance

E nhancement

P lan

T oA lign and

L ink our

Thin K ing


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It should be noted that much here is based onsimple reinforcement theory. The theory has twofundamental rules:

• To increase the likelihood of someonerepeating a behavior, reinforce the behavior.

• To decrease the likelihood of someonerepeating a behavior, discourage thebehavior.

You reinforce with praise; you discourage withcriticism. In a counseling session, whether you arecoaching or disciplining, that criticism should al-ways take the form of constructive feedback—itmust be a clear report of the problem backed byhard facts, sensible expectations, and useful ideasfor improvement. Your intention is to change be-havior, not to destroy motivation.

SESSION PREPARATION, FORMAT, AND FOLLOW-UP

1. Session Preparation

When you move from coaching to formal discipline,you “officially” place the employee in a processthat could ultimately lead to termination; thussession preparation becomes very important. Aswe have seen, each process step has five phases:

• Phase I. Search for the Facts

• Phase II. Consider Possible Actions orAlternatives.


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• Phase III. Take the Most Appropriate Action• Phase IV. Documentation• Phase V. Follow-Up

If you ever find yourself preparing to conduct asession “cold,” without work completed on the firsttwo phases, stop immediately. You must know thefacts; and you must be sure the disciplinary pro-cess, not training, is the correct course of action.

In your preparation work, you need to focus ontwo things:

• The content of the disciplinary discussionand how you will document it and deliver it

• The meeting place and its environment

Anyone who has disciplined an employee knowsthat such discussions are usually difficult anduncomfortable. Well-planned content and a goodphysical setting minimize the difficulties and lendsome ease to both the manager and the employee.

Content, Documentation, and Delivery

➂ Content

The content is simply the information you mustconvey to the employee. It includes the definitionof the issue (the facts of the situation; the goalsnot being met), your expectations for the future,and the next course of action (what the employeecan do to improve performance; what will happen


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if improvement does not occur). For a good guide,refer to the session-format table presented later inthis chapter.

The number one rule here is make good, thoroughnotes. And be sure to organize your notes so youcan actually work with them during the session. Afew random scribbles on a piece of paper will proveuseless. Remember: you are communicating seri-ous information. Pay attention to your language; ifyou use general terms like bad attitude or insubor-dination, define them with specific examples ofemployee behavior. Go for the details, and knowthe details. Keep in mind, too, that the sessionrequires documentation and that the employeewill receive a copy of the discipline letter. Clearand well-organized notes are invaluablereferences in this regard and give you someassurance that you will be comfortable with thedocument’s language and your statements to theemployee.

➂ Documentation

As for documentation itself, everything you say tothe employee will need documenting. Your organi-zation may have a standard documentation for-mat. If so, be ready to use it and to provide detailsabout the session. If not, then decide what formatyou will use, a disciplinary action form or a letter.The content of either must reflect your conversa-tion and detail your expectations. It is also a goodpractice to record, on a separate sheet of paper,


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what the employee said to you; statements like“Yes, I agree with your assessment” could becomeuseful if matters go from bad to worse later on.(More information on documentation, including asample action form, can be found in Chapter 5).

➂ Delivery

To be completely prepared for the session, re-hearse your delivery of the content. This ensuresyou get all the issues “on the table” in a concise,effective way. Rehearsal also gives you a thoroughknowledge of the material and increases yourconfidence.

It is also a good idea to plan for the unexpected.Think of some problems that could develop; thencome up with solutions. For example,ask yourself “What if the employeegets angry and doesn’t listen to thefeedback? What should I do?” In thiscase, a list of possible solutionswould include:

• Dismiss the employee until the next day todissolve the anger.

• Suggest the employee paraphrase thefeedback to calm down.

• Listen to the employee and let him or her“vent” the anger for a minute. This maydiffuse the tension enough to allow you tocontinue.

A Good Idea!


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Another Preparation Necessity!Notifying the Employee

Let the employee know about the meeting in advance.Remember, the session calls for two-way conversa-tion. It will be much more productive if the employeeis prepared to discuss his or her perceptions of theissue. Verbal notification is fine. Here’s an example:

Manager: Jim, we need to meet on your performance.Our coaching isn’t getting the results. Let’smeet next Tuesday, at 9 a.m., to discusswhat we can do to improve the situation.

Jim: Do I need to bring or prepare anything?

Manager: Yes. It would be helpful if you comeprepared to discuss the rationale behindyour inability to meet your deadlines. Youknow, we talked about it.

Jim: Okay. Thanks for letting me know. I’ll makesome notes.

The Meeting Place and Its Environment

The ideal meeting place is a quiet room outsidethe regular work area, away from the manager’soffice. This kind of setting helps you informalize aformal process. It gives you the best chance of es-tablishing the comfortable environment you need.Employees are more at ease and focused, neitheranxious nor distracted by the possibility of cowork-ers interpreting or misinterpreting the meaning


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behind a closed-door meeting. Moreover, the quietsetting facilitates mutual listening and retentionof information.

If you have no choice but to use an office near thework area, then be discreet. If the room has a win-dow, close the blinds to make the space more pri-vate. Never “announce” the meeting by loudlygreeting the employee, and make sure the door isfirmly closed before you begin the discussion.

Before the session, take precautions againstinterruptions by unhooking or unplugging thetelephone. Tell your secretary or assistant not toallow anyone to disturb you. Also, pay attention tothe room arrangement. Eliminate artificial barriersby placing two chairs in the room’s center, awayfrom the desk. Remember, you are setting thestage for the session, and you want to create ascomfortable an environment as possible.

Preparation Checklist

On the following page is a checklist of the mostimportant items we have discussed in this section.Refer to the checklist whenever you must preparefor a performance counseling session. As a matterof note, the list is highly useful whether you areproviding the employee with informal feedbackand coaching, or more formal feedback and disci-pline. In either case, your meeting should runmore smoothly and be more productive.


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P R E P A R A T I O N C H E C K L I S T

� Content, Delivery, and Documentation ❏ Make good, thorough notes of the information

you need to convey during the session. Beprepared to detail time, places, behaviors.

❏ Be ready to document the session. If yourorganization does not have a documentationformat, then select a format from this guidebookand use it.

❏ Rehearse your delivery; know your material.

❏ Plan for the unexpected.

❏ Give the employee advance notification.

� The Meeting Place and Its Environment

❏ Pick a quiet office, preferably one away from thework area and your office.

❏ “Privatize” the space. Close any window blinds.

❏ Eliminate artificial barriers in the room byplacing two chairs in the room’s center, awayfrom the desk.

❏ Take precautions against interruptions. Beforethe meeting, unhook or unplug the phone. Makesure your secretary or assistant knows you arenot to be disturbed.

❏ Never “announce” the meeting; make sure thedoor is closed before you begin.


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2. Session Format

The session’s format is structured to facilitatecommunication of the issue and consensus on asolution. Use the following table as your guide.

F O R M A T : P E R F O R M A N C E C O U N S E L I N G S E S S I O N

❶ Begin on aPositive Note

Put the employee at ease withpositive opening statements.

❷ Set the Agenda• Always in private• Never discuss with other employees• Work from notes

Explain reason for meeting andwhether this is an initial orrepeat discussion of issue.

Assure employee he or she willhave time to respond.

❸ Define theIssue(s)

Be specific. Explain what goalsare not being met.

❹ DefineExpectations

Be specific. Define performancemeasures. Specify timelines forimprovement. Keep expectationsto the “doable.”

❺ Define NextCourse ofAction

Discuss how employee can meetexpectations. Explain what willhappen if employee does notmeet them. Work with employeeto develop performance plan.

End on aPositive Note

Set timetable for follow-upmeetings. Praise positivechanges. State your availability.

D O C U M E N T ! D O C U M E N T ! D O C U M E N T !


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This format gives you a good structure to workwith—now you must build on it by providing thespecific feedback and applying your coaching skills.

Tips for a Productive SessionThe Opening. Always start the session on a posi-tive note. Even the best feedback, improvementideas, and action-planning attempts will gonowhere if the employee initially interprets his orher need for feedback as something negative. Yourattitude, demeanor, and tone of voice shouldconvey that the session will be dedicated toproblem solving, not finger pointing or chas-tisement. Your opening statements should putthe employee at ease and explain the sessionformat. Here’s an example:

Thank you for attending this meeting. I trustthat you’re prepared for it, and that we canhave a productive, highly informative discus-sion. I’ll begin with your work history anddetail why we need to have this meeting.Please hold your comments until the end—I’llmake sure you have a chance to respond to mycomments. Then we’ll problem-solve the issuetogether and create an action plan agreeable toboth of us. I also want you to know that I willdocument this discussion and give you a copy.

An opening like this one makes the employee feelcomfortable and sets the stage for constructivework on the issue.


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The Discussion. Behavior modification is virtuallyimpossible unless you get the employee involvedin performance-improvement planning. Althoughyou alone supply the disciplinary feedback, thedetailing of the problem and your expectations forchange, the problem solving is a two-way street. Asession filled solely with one-way discussiondriven from the top down will yield poor results.The employee must take responsibility for thechange, and will be far less likely to do that ifsolutions are dictated, not reached by consensus.

Closure. This should be as positive as you canmake it. Praise the employee for any contributionsmade and any positive developments that tookplace. Set a time for follow-up meetings, and em-phasize your availability should the employeewant to see you at any time for clarification or an“unscheduled” progress report. (You can expectthat most will, to demonstrate their commitmentto you.) Explain that the employee will soon re-ceive a copy of the meeting’s documentation andthat you will place a copy of it in his or her per-sonnel file. Then dismiss the employee—and startdocumenting.

Here are some suggested closure statements:

• You need to understand the impact of youractions and the consequences of your failureto comply with these instructions.


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• The next course of action could lead to[specify step of disciplinary process youwould take, either written or final].

• The next course of action could lead to furtherdisciplinary action up to and includingtermination.

3. Session Follow-Up

Follow-up reveals whether you must proceed tothe next step of the disciplinary process or canconsider the session a success. Select an evalua-tion method, and continue to provide the employ-ee with feedback by holding follow-up meetings asplanned. Be available, coach the employee asneeded, and remember to reinforce with praiseany improvements made by the employee. (Forguidelines on follow-up, see Chapter 2, Phase V ofthe disciplinary phases.) Also note: if you are atthe “final” step of discipline and see no improve-ment, your option is termination.

HANDLING FEEDBACK AND REACTIONS TOFEEDBACK

1. Handling Feedback

To convey the information needed for behavioralchange, you must keep control of the session, andthat means maintaining your self-control at alltimes. You will not accomplish much if thediscussion turns into an argument, no matter


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whose fault that is. Any chance of the employeelistening to feedback in the aftermath will be slim.

So, above all, hold on to the session: keep thetone business-like, and refuse to be drawn into anargument or a debate. In that way, you canachieve the goals we discussed in Chapter 2.Learn what good feedback is, rehearse it whenpreparing for a session, and maintain control ofthe session so that you can effectively use it.

The following guidelines will help you deal withfeedback. In using them, keep in mind the advice“Know your audience.” If you see ways to push the‘right buttons’ in a person to get your point across,then push them.

Handling Feedback: BehavioralGuidelines— 4 S’s

• Sensitivity— Keep the tone business-like.— Do not express personal feelings,

concerns, or explanations.— Do not belittle the employee in any way.

• Staying on course— Do not make small talk.— Do not be led into argument or debate.— Keep to your script.— Stick to the facts.


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• Sugarcoating the message— Never sugarcoat the message; you will

only confuse the employee. Don’t sendmixed signals. Tell it like it is.

• Situational specifics— Remember the session is intended to

correct performance. It is meaningful,and you and the session have purpose.

— If the session is not going well, dismissthe employee and arrange a next-daymeeting. Cool off.

� Remember the ABCs of Session Management:

ALWAYS BRING CONTROL

TO THE SESSION

2. Handling Reactions to Feedback

Positive or Negative?

From the manager’s perspective, there are reallyonly two employee reactions to counseling:positive and negative. Of course, each can takemany different forms; for example, a negativereaction can be anything from sheer apathy tooutright rage. And a manager must deal withwhatever form it takes. But essentially, a reactionis positive if the employee recognizes the issueand his or her strengths and developmental


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needs; a reaction is negative if the employee failsto recognize them or disagrees with the manager’sviewpoint on them.

The table below provides you with a quick andsimple reference for acting on these polarities.Note the need to focus on facts and clarity shouldthe reaction be negative. The rule here is act, donot react. That is, focus on the goal of the sessionand the action needed to reach that goal. Do notlapse into the personal, reacting emotionally.

Basic Reaction and Action Table

Question If so . . . If not . . .

Does employeerecognize theissue and agreewith yourviewpoint?

Acknowledgeagreement andprovide positivereinforcement.

Specificallyidentify anddefine them, andpoint out theissue’s impor-tance for taskachievement.

Does employeerecognize ownstrengths anddevelopmentalneeds andagree with yourviewpoint?

Acknowledgeagreement andprovide positivereinforcement.

Specificallyidentify anddefine them, andpoint out theirimportance fortask achievement.

Always ask employee for suggestions.Arrive at consensus on performance plan.


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Empathy and Availability

Empathy is an important part of any counselingsession. It is not enough to point out discrepan-cies and consider your job is finished; you must beavailable to help the employee work through anyanger and disagreement with your views. Perfor-mance improvement will be the “quicker” endresult.

Handling Difficult Personality TypesThere are a number of different personality types,but three stand out as being particularly difficultto work with when a manager is giving feedback.They are the intimidated, the inattentive, and theargumentative.

Intimated or Inattentive. The most effective way toget through to initimated or inattentive types is byinvolving them in the session as much as you can.As you work through the discussion, periodicallyask the employee to paraphrase what you havejust said. Have the employee take notes; later inthe session, ask the employee to write out his orher goals and action plan (use the PerformanceEnhancement Plan—PEP— form included at theend of this chapter). Doing so gives the intimi-dated employee confidence and draws the inat-tentive one into action; it also instills ownership.

The following list summarizes these suggestionsand presents a few others.


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Handling the Inattentive or Intimidated Employee

• Sit directly in front of the employee.

• Begin with PEPTALK. Coach the employeeas much as possible.

• Have the employee take notes to buildconfidence or to focus attention.

• Ask the employee to paraphrasediscussion.

• Ask open-ended questions to ensureunderstanding and encourage conversation.

• Enlist employee in action planning.

• Have employee write out goals and plans(use PEP form).

Argumentative. The argumentative person is themost difficult of the three types. The key here is todiffuse the anger. You must convey that the dis-cipline is not personal—it is business. Avoid gen-eralities; they feed the flames. Focus on details,and stress that the employee will have an activerole in performance planning. Above all, maintaincontrol— do not get drawn into an argument or adebate. If your attempts to diffuse the anger areclearly going nowhere, dismiss the employee andset a time to meet the next day. Time often leadsto “cooler heads” and the productive exchange ofinformation.


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Handling the Argumentative Employee

• Begin with PEPTALK. Be business-like inyour coaching, and avoid generalities.

• Attempt to diffuse the anger. Remind theemployee this is business, nothing personal.

• Do not engage in argument or debate.

• Ask employee to recommend action forimprovement.

• Have employee write goals and action plan(use PEP form).

• Reinforce with follow-up meetings.

• Dismiss employee if necessary; set timefor a next-day meeting.

GAINING COMMITMENT TO CHANGE

The employee is the one who must bring perfor-mance up to acceptable standards; the managercan only supply the road map and help determinethe best way to reach the destination. To facilitatecommitment to change, have the employee fill outa PEP form (see next page). It is also a good way todemonstrate in any subsequent litigation that theemployee knew there was a performance problemand accepted responsibility for it. Near the sessionclose, ask the employee to complete the form.discuss its contents, modify it to the agreement ofboth parties, and have the employee sign it uponcompletion.


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— FORM —PERFORMANCE ENHANCEMENT PLAN

Please ask yourself the following questions and record your answers:

1. What are the issues we have discussed and have agreedmerit my attention?

2. What can I do to improve my performance? (Discuss yourgoals, targeted objective[s], and timelines.)

3. How can my supervisor help me achieve my performanceenhancement plan?

______________________ Employee Date:

______________________Supervisor Date:

5. Documentation

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5Documentation

AS A PROMINENT LABOR ATTORNEY oncetold me, no documentation is sometimes better thanpoor documentation. His point: poorly wordeddiscussions can get you in trouble. Even if you ver-bally discuss the issue in clear detail, serious prob-lems can develop if the employee takes legal actionand your record of that discussion is vague,incomplete, or worsecontains erroneousinformation or harmful statements. The approachin this chapter therefore emphasizes the languageand content of documentation as well as the format.

Specifically, we will take a close look at:

• Your primary goal in documenting discipline

• Document validation

• Your documentation options: letter formator disciplinary action form

• The letter format, including outlines forverbal and written discussion

• Final discussion and its special needs

• The disciplinary action form

• The effective use of language: impact words


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As termination is the final, more troublesome stepof the process, its documentation (as well as itsprocedure) will be detailed in Chapter 6. It is astep that, if you discipline and document effec-tively, should lessen your concerns.

DOCUMENTING DISCIPLINE: YOUR PRIMARY GOAL

In working through this chapter, and wheneverdocumenting the disciplinary process, keep inmind the following:

• Clarity is your main goal. The documentshould . . .

— be easy to understand

— succinctly present the facts and the supporting details of the problem

— convey expectations for change

— specify the consequences of non-compliance to requested performance improvement

— set specific and achievable goals for performance improvement

— demonstrate your company’s willingnessto work with the employee over a givenperiod of time

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• Objectivity facilitates clarity. Keep to thehard facts, describing the problem via thosefacts. In good documentation, nothing issubject to interpretation. If you aim to beobjective, you will more easily attain yourgoal of clarity.

• Completeness facilitates clarity. Include allthe facts.

For example, a problem definition such as “Yourtardiness is a concern” may seem clear, but not ifwe compare it to this:

Your continuing instances of tardiness, five inthe last month on January 5, 10, 21, 27,and 28,strain the productivity of the department andyour coworkers, and the tardy behavior cannotcontinue any longer.

The employee knows that the tardiness is indeeda problem and gets a complete picture of that prob-lem: it is continual; it affects others; it cannotcontinue. There also is little room for interpreta-tion, filling the requirement of objectivity. Themeaning is clear to the employee and to any thirdparty reviewing the document. It is just what youneed to strive for in your documentation efforts.

Also, notice the dates of the tardy behavior aredefined. While it is not essential it is a goodpractice to be this specific. If you do not includethe dates make sure you convey that information


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to the employee and retain written evidence ofeach incidence in the file. But, as a standard ruleremember this: dates, times, and incidences willalways strengthen a letter.

DOCUMENT VALIDATION

It is important to know from the start these twotechnicalities:

1. You must ensure the employee receives acopy of the document, no matter what stepof the disciplinary process you are taking.

2. You must validate the document byobtaining proof the employee received acopy of it.

The first technicality is easy to cover. Simply givethe employee a copy of any formal discussion.

The second technicality requires getting the em-ployee to sign the original document and thengiving him or her a copy of it. But what if theemployee refuses to sign? Then note at the bot-tom of the document “Hand-delivered to [name ofemployee] this [date].” Either act—signing or handdelivering the document—helps to validate thedocument. As a matter of note, this is also thetime to guarantee the document’s protection byplacing it in the employee’s file.

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OPTIONS: LETTER FORMAT OR ACTION FORM

In documenting the disciplinary meeting, you canuse either a letter format or a disciplinary actionform. The letter relies on you for its structure andcontent; you write it “from scratch,” following anoutline for the body of the letter. The action formoffers you, to some degree, a ready-made struc-ture; it provides basic check-off information and afill-in area for detailing the disciplinary situation(for a simplified action form, see next page). Thefill-in area demands your clear and structured in-put, though, just as the body of the letter does.The content will be one and the same.

The advantage of the letter format is that you can“freestyle” the format. The advantage of the actionform is that it offers uniformity of format and con-sistency from one employee to another.


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— SAMPLE —DISCIPLINARY ACTION FORM: SIMPLIFIED

Name:Date:

Dept:

Level of warning: ❏

❏

❏

❏

VerbalWrittenFinalDischarge

Reason for discussion: ❏

❏Initial MeetingContinuing Issue

Nature of performance issue:

_____________________ Employee

______________________ Supervisor Copy to employee and personnel file

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No matter which option you select, the contentwill vary depending on the process step you aretaking. Here are the basic differences:

• Process Step 1: Verbal discussionDocumentation for this step focuses on theinformation conveyed, and the performance-improvement plan developed and agreed on,during the performance counseling session.It is a clear, faithful record of the session.

• Process Step 2: Written discussionDocumentation for written discussion fo-cuses on unmet expectations for improve-ment; it reminds the employee of his or heragreement to carry out the performance-improvement plan in Step 1, and of anydevelopments that took place in follow-upmeetings. This documentation sounds adanger alarm: it lets the employee knowthat the next course of action will be finaldiscussion unless change indeed occurs.

• Process Step 3: Final DiscussionThe content focuses on unmet expectationsand plans, and reminds the employee aboutthe previous verbal and written discussions.It details the additional reasons why themeeting was necessary. This session is awake-up call and a last chance for the em-ployee to live up to his or her agreements tochange; there is no “next time.”


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THE LETTER FORMAT

In general, the disciplinary letter consists of threeparts: (1) the salutation, (2) the body, and (3) themanager-employee signature area. The salutationdirects the letter to the employee, the body pre-sents the main text of the letter, and the signa-ture area provides lines for, and identifies, therespective signatures of manager and employee.

Obviously, the body of the letter requires the mostwork, and the most guidance; thus it will be ourfocus here. Salutations and signature areas willbe shown in the sample letters I have included.

Outline for Verbal Discussion

As you know by now, it is critical to document averbal discussion—what you say to the employee,and what the employee says to you, during theperformance counseling session. Don’t forget: ifyou prepare good, thorough notes for the session,and convey their information to the employee, youwill have a head start on this documentation.When organizing the body of your letter, use theoutline on the next page and the related com-ments that follow it.

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Outline: Verbal Discussion

1. Introduction

• Date and time of meeting• Statement of employee’s need to devote

attention to, and to comply with, goals “as discussed today and outlined in this letter”

2. Issue development

• Stated reason for meeting

3. Main text

• Problem/issue definition; what goals are not being met

• Description of the behavior to change; definition of expectations

• How employee can meet expectations; the performance goals and the plan that manager and employee have agreed on

• Timelines• Course of action if objectives are not met

4. Closure

• Timetable for follow-up meeting• Positive statement

Introduction

Writing the introduction can be a difficult task,but it is quite important because it sets the tonefor the rest of the letter. Always note themeeting’s date. Including the time is not crucial,


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but it does emphasize the significance you areattaching to the meeting and disciplinarydiscussion. Use it as you deem necessary.

You should always state the employee’s need topay attention to the letter’s contents and to com-ply with the goals you will specify therein. Thephrase as outlined in this letter is a useful modifier.For instance:

This letter serves to confirm our discussionconcerning a work-related issue needing yourimmediate attention as outlined in this letter.

Our meeting today was specifically designed todetail performance expectations for your positionas outlined in this letter.

Here are other examples of opening statements:

• Today, [date], at [time], we discussed a work-related issue, outlined below, which needs yourimmediate attention.

• This letter serves to confirm your need to payattention to, and comply with, the goalsdiscussed today, [date], and outlined below.

• Per today’s discussion and your agreement, the[performance] issue we discussed will receive yourundivided attention.

• It is important for your future employment withthe company that you work diligently toward theobjective we set today, [date].

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• As of today, [date], we discussed your need toimprove your performance as specified below.

• As of today, [date], you have agreed to complywith the goals and standards set forth in thisdocument.

• Your continuing attention to the work-relatedissues we discussed today and outlined below isnecessary to demonstrate your commitment tochange.

Issue Development

You now start focusing on the issue. A generalstatement about the issue will prepare the way forfurther definition in the main text of the letter.

It is often useful to preface such statements withper our discussion or as we have discussed. Thisreinforces your document’s legal strength becauseit confirms the discussion. Below are some sampledevelopment statements for cases of absenteeism,tardiness, and performance-related issues.

Absenteeism

• This meeting was called because you mustimprove your overall rate of absenteeism.

• Your continuing absenteeism cannot betolerated.

• Your failure to adhere to company standardsfor absenteeism is affecting your ability to meetdepartmental objectives.


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• Your failure to comply with normal rates ofabsenteeism is negatively affecting your abilityto meet your position’s objectives.

• Your absenteeism rate is becoming a moraleissue to the department.

• Your pattern of absenteeism is unacceptable.

• Your absenteeism is excessive and unacceptable,and must improve immediately.

Tardiness

• You must find ways to reduce your instances oftardy behavior.

• Your tardy rate is above the departmentalaverage and is interfering with your jobperformance.

• Per our discussion you must find ways to controlyour rate of tardiness.

• You need to consider the impact of your tardybehavior on the department [or coworkers].

Performance-Related Issues

• You must develop a more thorough under-standing of the process, including [specificsof process].

• You must devote immediate attention tothoroughly understanding the specific job dutiesof your position, including [specific job duties].

• There are specific aspects of your position whereyou are not performing up to expectations,including [specific aspects].

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• You continue to violate the company’s workrule concerning [smoking, safety, extendedbreak periods, and so forth].

• You must take the time to learn moreconcerning your assigned tasks, including[specific tasks].

Note the repeated use of including in the samplesfor performance-related issues. This lets the em-ployee know what the specific area of the problemis and acts as a bridge into further issue defini-tion. A detailed example:

You must take the time to learn more about theassigned tasks, including:

(1) How to enter journal-ledger entries according toGAAP and divisional requirements.

(2) How to quickly retrieve information from themainframe computer.

The manager who is dealing with this sample is-sue would detail, in the next portion of the letter(the main text), just what the specific performanceproblems are; for instance, that the employee’sentries require constant review and that he or shespends excessive time on information-retrieval.

Main Text

This is where you focus on the specifics of thediscussion—the issue definition, the goals notbeing met, your expectations for change, the per-formance plan you and the employee have agreed


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on, the timelines, and the course of action youwill take if the employee does not improve theproblem behavior. (See also page 70, PerformanceCounseling Format.)

Here is an example for absenteeism:

As we have discussed, you missed nine days ofwork in the past two months, on January 10, 13,22, 25 and 27 and on February 9, 12 and 13.This rate of absenteeism is substandardaccording to company goals and policy, and hashad a negative impact on the productivity of thedepartment. This performance is unacceptable. Toconform to company standards, you must reduceyour absenteeism rate by 60 percent. Accordingto our discussion, you have agreed to meet thecompany standard from this day forward and tosupport any absences for medical reasons with aphysician’s statement, which will be subject toverification. As you know, failure to meet yourstated goal will result in further disciplinaryaction.

You might personalize some statements by addingan opening phrase such as “Now is the time.” Forinstance, “Now is the time for you to improve youron time performance, or we will have no choicebut to place you on a written.”

As mentioned earlier in the guidebook, goalsshould always be obtainable—they may “stretch”the employee’s abilities, but should never set the

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employee up for failure. Your discussion of goalsshould focus only on what the employee can rea-sonably meet, and the documentation should ac-curately record that discussion. “Failure goals” willnot motivate and are subject to intense scrutinyin wrongful-discharge litigation.

Closure

Set the timetable for follow-up meetings, and endon a positive statement. Emphasize the employ-ee’s commitment to change, and make sure theemployee knows you will be available for help atany time. For instance:

• The company expects you to make every effortto comply with the performance improvementplan we discussed and as outlined in this letter.I am confident you will make these efforts, and Iam ready and willing to assist you whenevernecessary.

• According to your stated commitment, you haveagreed to work diligently toward meeting theperformance objectives we discussed and asdetailed in this letter. I trust you will make everyeffort to improve. If I can help you in anymanner, please let me know.

How does all of the above come together in theactual letter? To find out, take a look the sampledocument on the next page.


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✦ How It All Comes Together ✦

Letter for Verbal Discussion—Sample

Intro

This letter serves to confirm your need to pay attention to,and comply with, the goals discussed today, January 6,and as outlined below.

Issue Dev.

Specifically, your failure to comply with thenormal rates of absenteeism is having a negative effecton your ability to meet your position’s objectives.

Main Text

This situation has had a negative impact onthe productivity of the department. This performance isunacceptable. To conform to company standards, youmust reduce your absenteeism rate by 60 percent.According to our discussion, you have agreed to meet thecompany standard from this day forward and to supportany absences for medical reasons with a physician’sstatement, which will be subject to verification. As youknow, failure to meet your stated goal may result in fur-ther disciplinary action.

Closure

This letter serves as a formal verbal discuss-sion. The company expects you to make every effort tocomply with the performance improvement plan wediscussed and as outlined in this letter. I am confidentyou will make these efforts, and I am ready and willingto assist you whenever necessary.

Sign.Area

_________________ ____________________Manager Date: Employee Date:

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Outline for Written Discussion

As the written discussion is the second step of thedisciplinary process, your documentation shouldspecify the employee has not met the goals agreedto in the meeting (performance counseling ses-sion), and that further non-compliance will prompta final. Remember: it is important to validate thedocument with the employee’s signature to provehe or she received a copy of the document andthat the meeting took place.

The outline is similar to that of verbal discussion,but emphasizes the employee’s non-complianceand need to recommit to the change effort. Theoutline is shown on page 97.

Introduction

State present date and remind the employee ofdate of session. Also mention the date of anyfollow-up meeting. Your statement of employee’sneed for attention and compliance to agreed-ongoals should set those goals in the context of theprior meeting and documentation of that meeting.Be sure it is clear you are restating the goals here.The employee and any third party who sees thisdocument must understand these unmet goalsare a continuing problem.


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Issue Development

Basically, issue development for absenteeism,tardiness, and performance-related issues is thesame as the issue development for verbal discus-sion. For examples, see previous section on theoutline for verbal discussion.

Main Text

Restate the problem definition and explain whatgoals the employee is still failing to meet. Reviewyour expectations and the details of the perfor-mance plan; emphasize that the employee agreedto follow the plan and must begin to comply withthat agreement. Set new timelines, and explainthat final action will be taken if the goals remainunmet at those times. The main text in the sam-ple letter on the page 98 illustrates the above.

Closure

In closing the letter, you must stress the need forthe employee’s recommitment to the performanceplan. Always end on a positive note, reminding theemployee that you are available for further help.This is important because it not only lets theemployee know there is continuing managerialsupport, but also demonstrates to any third partythat such support was offered. For an example,see the sample letter on page 98.

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Outline: Written Discussion

1. Introduction

• Present date; reminder of date of priormeeting (verbal discussion) and date of any follow-up

• Statement of employee’s need to devote attention to, and to comply with, goals “as agreed to during our meeting [and reinforcedby any follow-up], as outlined in the record ofthat meeting, and as restated in this letter”

2. Issue development

• Why meeting took place

3. Main text

• Restatement of problem/issue definition; what goals are still not being met

• Restatement of the behavior to change; redefinition of expectations

• What performance goals and plan manager and employee agreed on, and that have not beenmet and followed

• Need for employee’s recommitment to changebehavior and reach stated goals

• New timelines• Final action to be taken if goals still are not

met by dates specified in timelines

4. Closure

• Emphasis on importance of compliance• Emphasis on importance of recommitment

to meet goals and follow plan• Positive statement of continuing support


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Letter for Written Discussion—Sample

Intro

It is important for your future employment with thecompany that you work diligently toward the objectivewe set today, January 6.

Issue Dev.

You continue to violate the company’s work ruleconcerning cigarette smoking, therefore completelyignoring our last discussion.

Main Text

As you recall, you agreed to comply with thecompany’s no-smoking rule. Smoking, per policy, is onlypermitted outside the cafeteria. You were again seenignoring this policy, and our last conversation, bysmoking in the cafeteria. Not only is this a violation ofpolicy and our first agreement, but it is extremelytroubling to your coworkers who are in compliance. I amtaking this time to emphasize again that you cannotsmoke in our facility. According to your statement to mein this meeting, you will be in compliance at all times. Youhave also told me you understand that if you fail tocomply with our rules, and violate the policy again, wewill have no choice but to move to a final.

Closure

If you desire, I can arrange for you to attend a smokingcessation program. We can offer you one through ourEmployee Assistance Program, EAP. Only you canchange your behavior. I am ready to help you do so atany time.

Sign.Area

__________________ ____________________Manager Date: Employee Date:

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Final Discussion and Its Special Needs

As we have seen, final discussion is the employ-ee’s last chance to alter his or her behavior beforetermination. It is a wake-up call and your lastattempt to get through to the employee, who, forwhatever reason, is clearly in a non-compliancemode. Thus effective joint problem solving takeson a heightened sense of urgency. You need tocommunicate that the employee must change, “orelse.” And yes, at this point, discipline does soundmore punitive than positive.

Outline for Final Discussion

The outline is essentially the same as the one forwritten discussion, which you can use as a gen-eral guide. However, in your introduction, be sureto remind the employee of the previous verbal andwritten discussions. Also keep these exceptions inmind:

• The language and tone in the main textshould assume a more serious nature,particularly when you are discussing thefinal action to be taken if goals are not metby the dates specified in the timelines.

• The closure should underscore the serious- ness of this final action.


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Discussing Final Action. The following examplesillustrate the kind of language and tone you needto convey the gravity of this disciplinary step.

• Your failure to comply with the goals set in ourtwo previous discussions leaves the companywith no choice but to place you on a final.

• Your reluctance to deal with your performanceissues, as we mutually agreed, cannot beignored and leaves us with no option but to placeyou on a final.

• The company cannot ignore your continuingreluctance to deal with the performance issueswe outlined and discussed on several occasions.You leave us with no option but to place you on afinal.

• We have had multiple conversations about yourcontinuing performance problems. These wereacknowledged by you on the dates as recordedabove. Your failure to live up to your commitmentto improve necessitates the need for a final.

Closure. So far, I have emphasized the need toclose with as positive a statement as possible, onethat will demonstrate your continuing support forthe employee. This is still our goal, but now wemust lay out in no uncertain terms the serious-ness of the final action. For example:

• John, this is your final opportunity to complywith the goals we have now discussed on threeoccasions. I hope you decide to do so, but youare the only person who can make that happen.

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I have previously stated to you, and will restatenow, that I am available to help you. Your failureto comply at this point, however, must beunderstood. The company’s next course ofaction is termination.

• You need to understand the importance ofcompliance at this stage of our process. Non-compliance is no longer an option, and yourfailure to comply will lead to termination. I havebeen available to help you, and I will continue tooffer my support.

Our goal with language like this is to leave noroom for interpretation. In meeting this goal, youmay find the employee particularly reluctant tosign the document; if so, hand-deliver it accordingto the instructions provided earlier in this chapter.

THE DISCIPLINARY ACTION FORM

At certain times, you may find it preferable to usean action form, rather than a letter, to documentthe disciplinary-process step you are taking. I per-sonally prefer it because it adds structure, carriesa formal title, and acts as a memory jogger for thevarious steps of the discipline process.

In this chapter’s discussion of format options, youwere shown a simplified version of an action form.A more detailed version appears on the followingpage. Select the form that best fits the issue youare dealing with.


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— SAMPLE —DISCIPLINARY ACTION FORM: DETAILED

Employee Name ______________Division ___________________

Position ____________Region _____________

Disciplinary action to be taken:

Action required:

❏

❏

❏

❏

❏

❏

Performance

Violation of Rules

Verbal Discussion

Written Discussion

Final Discussion

Discharge

Detailed performanceimprovement required:

• Expectations • Time Frames• Measurements • Consequences

Explanation of situation and action to be taken:

I acknowledge a copy of the abovehas been given to me this day.

_____________________ Employee

Date:

______________________ Supervisor

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Filling Out the Action Form

Note the the three major sections of the detailedversion:

• Disciplinary action to be taken• Action required• Detailed performance improvement

required

Each is further defined, with the first two offeringeasy check-off of related items.

As mentioned earlier, the third, fill-in section re-quires your clear, thorough input. The outlines forthe body of the disciplinary letter are valuableguides in this respect. Use them to craft your ex-planation of the situation and the performanceplan you and the employee have developed andagree on. Be sure to include the following:

• Issue identification

Example: You have failed to meet your salesquota for the last three months.

• Description of the behavior or issue thatmust change

Example: Your percent to plan was 92 percentin June, 88 percent in July, and 85 percent inAugust. This suggests a trend that cannotcontinue, and you must achieve plan.


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• Objectives to achieve the plan

Example: We discussed this issue and youagreed to call on six new customers eachmonth, call on existing customers twice amonth, and make sales presentations on thecompany’s new products to at least 30percent of your client base.

• Time expectations

Example: You must be on plan by the end ofthe year.

Remember: practice makes perfect. Use the sampleforms to practice how you would document thefirst three steps of the disciplinary process. Reviewthe results with someone and ask for a critique. Ihave included an exercise at the end of this chap-ter to get you started on your action-form practice.

THE EFFECTIVE USE OF LANGUAGE

I cannot stress enough that whenever you aredocumenting the disciplinary process, you shouldlead into the specifics and then focus on them.The more detailed—clear, objective, and com-plete—the documentation is, the better. Precise,defensible language is your ally here, as is lan-guage that makes an impact on the employee. Youwant to convey whatever information is needed toresolve the issue, and you want to do so in a way

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that sparks the employee’s motivation and thencontinues to fuel it. Remember: the commitmentto change must be intense and lasting; it has tosurvive the difficulties the employee may en-counter later, when trying to modify his or herbehavior.

Defensible LanguageDefensible language means language that conveysspecific, objective facts. Indefensible language isvague—subject to interpretation, indefinablewithout explanation. Such language is best ex-emplified by the two terms bad attitude and insub-ordinate. Managers tend to overuse them and thusunwittingly subvert the disciplinary process.

To avoid this trap, detail the observations that ledto your conclusion of insubordination or bad atti-tude. For instance, the following describes a badattitude: “The employee was argumentative with acustomer. I directly heard him shout into the re-ceiver, ‘ The shipping problem isn’t my fault! Whatdo you expect me to do?’ ” Such a statement addsdefinition and is easily understood. So be specific:detail the instances that led to your conclusion ofinsubordination or bad attitude, and thoroughlydescribe the employee’s behavior.

Impact WordsStarting on page 107 is a list of words and phrasesoften found in good documentation. Use them toformulate sentences for your discipline and


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documentation efforts. Notice that some instillaction, while other point toward change. They willhelp you clarify and detail work expectations.

To get an idea of how such impact words work in asentence, look at these samples:

Together we can search for alternatives to isolatefactors for improvement to prevent futureproblematic issues.

Let’s work together to jointly establish a mutuallyagreeable course of action.

You need to search for alternatives that willcontribute to task deliverables. Failure to complyor implement our agreements will result in furtherformal action.

Your flagrant disregard for our mutually definedgoals continues your prolonged pattern of ignoringcompliance to expected group norms.

• Our counseling process and our subsequentgoal setting has reinforced your need toimprove and modify your unproductive patternof behavior.

• We need to work together as a team toimprove your level of understanding. You musttake ownership in this process to lessen thelikelihood of further disciplinary action.

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➂ I M P A C T W O R D S T O L E A R N A N D U S E

ActionsAdversityAgreementAlternativesApproachAssistAttentionBehaviorsCannotCeasedCessationChangeCoachCollaborativeCommitComplianceConfirmConsequencesConsiderConsistentConstructiveContinuedContributeContributingControlConversationCooperationCorrective action

CounselingCourse of actionCriticalDeal withDecreaseDeliverDeliverablesDemonstrateDetrimentalDeviateDeviseDirectionDischargeDisciplinary reviewDiscussionDisobedienceDisobeyDocumentedEffortEncourageEncouraged byEstablishEvaluate Exchange of informationExcusedExpectationExplicit

FactorsFailure to complyFlagrant disregardFollow upFrequencyFurther actionFormalGoal settingGuideIdentifyIgnoreImpactImplementImproveImprovementInappropriateInformalInfractionIntolerableIsolateJointlyKnowLessen the likelihoodLevel of understandingLook forModify

(Continued)


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I M P A C T W O R D S T O L E A R N A N D U S E (Concluded)

MotivationalMutually agreeableMutually beneficialMutually definedNeed toNegativeNormsObjectiveObservationPartnerPatternPositivePositive environmentPositivelyPossible actionPreventPreventiveProblem solving

ProblematicProcessProlonged patternProvidePut to paperRealisticReasonableReduceReinforceRelevantRepeatedRepetitiveResolutionResponseSearchSelf-directedSeriousSolutionsSpecificallyStepStoppedSubstantialSuspend

Take ownershipTaskTerminationThink aboutTimelines for improvementTimingTurn aroundUnderstandUnderstandingUndesiredUndividedUnproductiveUnwantedUp to and includingViolationWarningWill not be toleratedWill resultWork together as a teamWrite it up

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— EXERCISE—DISCIPLINARY ACTION FORM

Directions: Use what you have learned so far from this guidebook tomanage the case situation below. Read the case, and take some time tothink about the situation; then fill out the blank disciplinary action formon the next page.

An example of good discipline and documentation practice is shown inthe action-form section that concludes the exercise.

CASE: A Final for John Wasastar

John Wasastar is now in sales, and he just is not listening to yourfeedback. It’s as if he doesn’t really care. On March 4, you gave him averbal notice, and on July 10, a written notice. He has been well awarethat you’ve been available for help.

It’s November 1, and he still is not meeting the goals you and he set toimprove performance, specifically:

1. To call on 10 new clients each quarter

2. To increase plan achievement by 95 percent

3. To complete a weekly report detailing his salescalls and interactions with customer service

You are about to sit down with him and issue a final notice. Whatwill you say? Take some time to gather your thoughts—makesome notes if necessary. Then use the action form to record yourstatements. Remember, you ordinarily would be filling out this form afteryou had spoken with John, not before. (If need be, continue yourexplanation on a separate sheet of paper.)

(Continued)


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— EXERCISE —DISCIPLINARY ACTION FORM (Continued)

Employee Name ______________Division ___________________

Position ____________Region _____________

Disciplinary action to be taken:

Action required:

❏

❏

❏

❏

❏

❏

Performance

Violation of Rules

Verbal Discussion

Written Discussion

Final Discussion

Discharge

Detailed performanceimprovement required:

• Expectations • Time Frames• Measurements • Consequences


I acknowledge a copy of the abovehas been given to me this day.

_____________________ Employee

Date:

______________________ Supervisor

(Continued)

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— EXERCISE —DISCIPLINARY ACTION FORM (Continued)

Sample Explanation:


This document serves to confirm your need to pay attention to, andcomply with, the performance goals reviewed today, November 1,and outlined below. Today’s meeting was called because youhave not met the goals we mutually agree on in our meeting onMarch 4. As you know, these goals and the continuing issue wereagain brought to your attention in the written notification I issued onJuly 10. Your continuing non-compliance is entirely unacceptable.

Specifically, in our March 4 meeting, we agreed on three goals:

• Call on ten new clients each quarter.• Increase your plan achievement by 95 percent.• Complete a weekly report detailing your sales calls and

interactions with customer service.

To date, you have failed to meet all three. You have called on anaverage of seven new clients, your plan-achievement percentstands at 91 percent, and you failed to file a weekly report for sixweeks total—the weeks of May 1, May 29, June 24, September 4,September 25, and October 16. This level of performance cannotcontinue.

As of this date, November 1, you are being placed on a final forfailure to meet our mutually agree-on goals. In order to continuewith your employment, you must:

• Call on ten new clients each quarter.

(Continued)


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— EXERCISE —DISCIPLINARY ACTION FORM (Concluded)

Sample Explanation Concluded:


• Increase your plan achievement by 95 percent byDecember 15.

• Every week complete a weekly report detailing your salescalls and interactions with customer service.

These are all very achievable goals, and I expect you to meetthem in the timelines specified. If you do not meet theseexpectations, you may be subject to termination.

As always, I am available to meet with you and assist you at anytime. Today is the day to renew your commitment to performanceimprovement and act on these goals. Let’s work together to getback on track.

COMMENTS. Notice that the sample explanation specifiesthe following:

��

History of prior actions—Why are we here?Goals previously set—Continuing issueFailure to meet those goals—The detailsGoals and expectations for the future—Defined measuresFollow-up—Doable outcomes; availability of manager for help

This is good discipline and documentation practice—the kind you should always aim to achieve.

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6Termination:

Procedure and Documentation

TERMINATION REQUIRES the utmost attention to safeprocedure and detailed documentation. Wrongful-discharge lawsuits and charges of discriminationare common responses to termination, and they arecostly in terms of litigation expense and negativeimpact on an organization. The ultimate goal ofany company is, of course, to avoid termination byeffectively facilitating performance improvement.However, it is unrealistic to assume thatimprovement will always occur—not all employeeswill be dedicated to excellence. And even the bestdisciplinary practices cannot prevent offenses thatrequire immediate termination. The most an or-ganization can do is establish a consistent proce-dure for termination, such as the one in this book,and make sure it is meticulously followed anddocumented whenever termination is necessary.

In this chapter, we will initially focus on perfor-mance-related termination and its procedure anddocumentation; then we will turn our attention toimmediate termination. A list of termination pit-falls and pratfalls is also included.


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PERFORMANCE-RELATED TERMINATION:PROCEDURE AND DOCUMENTATION

If you have legitimately reached this drastic step ofthe disciplinary process, you have exhausted allthe possibilities afforded by verbal, written, and fi-nal discussions. You have coached the employee,followed up, and found the employee entirelyunwilling or unable to modify the problembehavior. You have documented the disciplinaryprocess faithfully, using the proper formats andensuring your documentation is clear andunderstandable. You have reached the pointwhere you have no other choice. Anything lessthan the above means you have not reached thisstep legitimately and should reconsider yourdecision to terminate.

Preparation

When indeed termination is necessary, be readyto meet with the employee, and to document thatmeeting. Begin with these steps:

Preparation Steps

1. Check your state’s rules for termination, andbe prepared to follow those rules. Forexample, California and some other statesrequire that you give the employee his orher final paycheck when you terminate.

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2. Check your organization’s guidelines fortermination, and observe them. If yourguidelines set forth procedures which havenot been followed, it is premature toterminate.

3. Secure a third party for meeting attendance.I recommend you never terminate withouta third party, preferably another manager,in attendance. This individual helps youmaintain control in a potentially volatilesituation and serves as a witness to whatwas said and, just as important, what wasnot said.

4. Set a meeting date and time, and notify theemployee. Make sure you set adate and time when the third-partyindividual is available.

5. Prepare good, thorough notes. As for anydisciplinary meeting, your notes are valu-able memory and documentation aids. Payespecially close attention to the specifics,noting the history of the violation in detail.Again, organize the notes well, so you canactually use them during the meeting.

6. Rehearse the material several times. Knowthe material and what you are going to say.

7. Develop a plan for the unexpected. As withany disciplinary meeting, ask yourself


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“What if . . .” and come up with a plan fordealing with it.

8. Document. Be sure your third party recordsthe employee’s comments. Your attentionis best focused on the employee.

9. Prepare meeting room. Select a quiet,private office. Place chairs in the center ofthe room, away from the desk. Unplug orunhook the telephone just before themeeting. If any office windows face a workarea, close the blinds.

Meeting Procedure

Do not view this meeting as one in which youmust tailor your reasoning to the employee. Yourreasons should be readily apparent if you and theemployee have been working together for sometime on changing the behavior. State your case,emphasizing past discussions, and end the ses-sion. For example:

We are here today because of your failure tomeet the objectives we set in our verbaldiscussion on [date], our written discussion on[date], and our final discussion on [date]. Asyou know, in our last meeting we agreed thatour next course of action would be termination.We have reached that stage.

This is not the time for education or motivation:that time is now past. The only exception is if the

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employee presents new information or facts thatmust be investigated. Due process will not beserved until the investigation is completed. Theprocess must be exhausted before termination.

Documentation

Your documentation needs for termination differfrom those for earlier disciplinary-process steps, asyou are no longer focusing your efforts on problemsolving and performance improvement. For thisstep, you need to prepare a letter of terminationin advance of your meeting with the employee.The department head, Human Resources, andyour legal department should review the letterbefore you give it to the employee at the meeting.The letter should state the reasons for termina-tion as spelled out in your previous verbal, writ-ten, and final discussions. This is not a time to getcreative. Use clear, direct language to stress that:

• The employee continued the unwantedbehavior

• The company expended considerable timeand effort on trying to change the behavior

• The employee chose to ignore thecompany’s efforts and input

Place the emphasis on the employee and his orher non-compliance with the company’s effort to-ward positive change. Some sample statements:


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• Your continued violation of the company’s workrules leave the company with no choice except toterminate our employment relationship.

• Your continued disregard for the company’sinput on your continuing performance issueleaves us with no choice except terminating ouremployment relationship.

• Because of your flagrant disregard of our priordiscussions, you leave us with no choice excepttermination, effective immediately.

• Because of the extreme and serious nature ofyour actions, you leave the company with nochoice except to terminate the employmentrelationship.

• The company has met with you on severaloccasions to discuss and assist you in changingyour work behavior. You have failed to meet themutually agreed on goals we set, which leavesthe company with no choice but to terminate theemployment relationship.

The sample termination letter on page 120 showsyou how it all comes together. Note the continualreference to the employee and his or her refusalto change. This emphasizes the employee hasmade a conscious decision not to comply. As Imentioned earlier, a manager can only provide theroadmap to change and help the employee reachthe destination; the employee must want tochange and get to that destination.

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Voluntary Termination

On occasion an employee may choose to resigninstead of accepting termination. In such a case,ask the person to give the company a letter ofresignation stating the reasons for the decision.The employee’s letter to you should include astatement acknowledging the employee’s desire toleave on his or her own volition. The company canalso send to the employee a letter detailing thecircumstances surrounding the resignation andconfirming the resignation. Both methods help tovalidate the employee’s decision to voluntarilyterminate.

A note of caution: Do not be lulled into believingyou are “free and clear” of any problems from thispoint on. There is a doctrine called constructivedischarge which states, in effect, that the com-pany made the person’s environment so intolera-ble, the person’s only alternative was voluntaryresignation. However, the company can use theemployee’s letter to raise reasonable doubt anduse it to counter any legal challenge byemphasizing choice on the employee’s part andarguing that working conditions were tolerable.


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Letter for Performance-Related Termination—Sample

The company has met with you on several occasionsto discuss your continuing performance issue.

Specifically, we met on March 3, and I issued averbal; on May 7, and I issued a written; and againon June 29, at which time you were placed on afinal. In each instance, we discussed in detail yourfailure to improve your overall rate of absenteeism.And in each meeting you gave me your commitmentto comply with the goals we mutually established. Intotal, you have missed over 30 days of work, placingan undue hardship on the department and yourcoworkers. Since our last meeting, you have onceagain been absent, displaying a disregard for yourstated commitment to change.

This continuing issue can no longer be tolerated.Your continued violation of the company’s work rulesleave the company with no choice but to terminateour employment relationship.

Obviously, you do not validate the letter of resig-nation, as it is employee-generated; but you maywant to record your acceptance of the resignation,in writing, at the bottom of the letter. Statementsyou can use include:

• Per your request, the company accepts yourdecision to voluntarily terminate youremployment.

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• Per your decision, the company will honor yourrequest to voluntarily terminate your employ-ment, effective immediately.

• After considerable thought, the company willhonor your decision to voluntarily terminateyour employment and accepts your letter ofresignation.

• The company has spent considerable timeand effort on working with you on yourperformance issues. Your decision not tocontinue working toward positive change isregrettable; however, we will accept yourdecision to voluntarily resign.

• The company will honor your decision tovoluntarily leave our employment, effective(date). We wish you the best in your newemployment endeavors.

If you choose this option, give the employee a copyof the letter with your statement on it.

Our final word of caution. If the employee submitsa letter of resignation citing uncareful or improperconduct on the part of the company or fellowemployees as the reason for his/her resignation,you should conduct a full investigation. It mustinclude making contact with the employee toobtain his/her version of the events. Do notterminate until you are satisfied with yourinvestigation.


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Rules of Confidentiality

Follow these rules closely. By ensuring confiden-tiality of the termination case and documentation,including counseling, you will help protect thecompany against unfounded claims of retaliationand defamation.

Rules of Confidentiality

• File document where it is completelyconfidential but easily retrievable.

• Never give the documents to anyone insidethe organization unless there is a legitimatereason for the person to see them.

• Never send the documents to anyoneoutside the organization unless it issubpoenaed. Always consult with yourattorney before sending the information. Ifattorney approves, send only the requestedinformation.

• Never answer queries on the terminatedemployee over the telephone or in writing.In most instances, provide no more thanname, dates of employment, and job title.

• Maintain the documentation for a minimumof five years.

• Never discuss the reasons for terminationwith anyone who does not have a need toknow about them.

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Termination ChecklistYou should develop a checklist to ensure thecompany follows a set protocol each and everytime an employee leaves the company. It is espe-cially critical that the record is properly stored andthat all inquiries about the person’s departure arereferred to the human resources department.

� T E R M I N A T I O N C H E C K L I S T

❏ Present final paycheck.

❏ Ask for identification cards, office keys.

❏ Explain COBRA entitlements.*

❏ Notify state employment compensationdepartment.

❏ Refer to Human Resources any externalinquiries about the employee’s departure.

❏ Notify insurance carrier.

❏ Place documented reason for termination inemployee’s file, along with all other documentedissues.

❏ Place complete employee file in recordretention for storage.

❏ Notify security checkpoint(s).

*COBRA (Consolidated Omnibus Budget ReconciliationAct) protects insurance coverage for a specified lengthof time.


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IMMEDIATE TERMINATION: PROCEDURE ANDDOCUMENTATION

In the case of a serious, non-performance-relatedoffense, you may choose to immediately terminatethe employee, that is, terminate without goingthrough the disciplinary process. Actions thatmerit such severe consideration, even on a first-time basis, include the following:

• Fighting/Violence• Theft• Deliberate destruction of company property• Sexual harassment• Use or sale of drugs on company property• Falsification of company documents• Bringing weapons on company property

It is a good idea to have a policy in place that de-tails the consequences of such actions. Includethe policy in the employee handbook, where allemployees can review it. You might even post it onall the company bulletin boards. The policy shouldstate that your list is illustrative only, and is not acomplete nor comprehensive list of offensesmeriting termination, and that there may be otherbases or situations in which the company reservesthe right to terminate immediately.

6. Termination

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The Need for Proof: Investigation

Never base your decision to terminate on rumor orunsubstantiated claims. Your best defense is toprove the violation was committed—and usually,to substantiate that proof, you must conduct a for-mal investigation.

You should have a standard investigation methodin place in your organization, to ensure consis-tency of action across cases; and those likely to in-vestigate such violations should be trained in thatprocess. You can use the information in thissection either to reinforce the credibility of thatprocess, or as a basis for establishing a standardmethod.

The Special Case of Firsthand Observation

If your position is one based on firsthand observa-tion—that is, if you caught the person in the act ofcommiting the violation (e.g., selling drugs)—youhave an immediate legal advantage. This is themost defensible position because you have seenthe violation. There is no hearsay or subjectivityto cloud the issue.

In such a situation, take this course of action:

• Bring the employee into your office or othersuitable area.

• Get a witness to stand in, as describedearlier in this chapter.


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• Terminate the employee; then, for securityreasons, have the employee quietly escortedto the exit.

• Document.

• Send the termination letter to the employeevia registered mail.

As in the case of performance-related termination,make sure your documentation (termination let-ter) is reviewed by the department head, HumanResources, and your legal department.

Preliminary Concerns and Investigation Guidelines

Before proceeding with an investigation, makesure an investigation is necessary. To determineits need, ask yourself: Can I immediately resolvethis issue? Sometimes employees admit they areguilty as accused; at other times, the offensebecomes self-evident. For instance, Mary accusesJohn of sexual harassment, and John admits hisactions when you meet with him; or someonereports John has brought a gun on to thepremises, and you confirm it when you meet withhim. Most of the time, though, you will find thatyou need to investigate.

Before you begin the investigation, you shouldsuspend the employee. Call the employee into aquiet office, and be forthright in your comments.Use this sample as a guide:

6. Termination

127

Jim, you were fighting, and we do not toleratesuch activity at this company. After I take astatement from you to get your side of the story,you must leave the building. I will call you inthree days to let you know our decision onwhether to terminate you or reinstate you. I alsowant you to know I will be interviewing allwitnesses to get at the facts of this unfortunatesituation.

After you have suspended the employee, followthe guidelines below.

When an Investigation Is Necessary . . .Who-What-When-Where-Witnesses

• Identify potential witnesses. Who hasknowledge of the alleged event?

• Determine who will conduct the investiga-tion. Assign two investigators. Both willrecord comments to ensure accuracy.

• Formulate your questions. Make sure theyare open-ended, that is, designed to elicitresponses. For example, “What can you tellme about Mary’s sexual harassment claim?”

• Document conversations with interviewees,and take action if warranted (do so in atimely manner).

Once you have gathered this information, it mustbe reviewed by those who approve terminations


128

(e.g., Human Resources, legal department). If yourprocess calls for more people, get them involved.

Termination Procedure: Notifying and Meeting Withthe Employee

If your investigation confirms the accusations orevents, let the employee know by telephone whento return to work; provide a specific date and time.You may be pressured to give your answer overthe phone. I suggest you do not do so. A face-to-face termination meeting is always preferable, asthe employee’s comments can be documented.You can also hand the employee the letter of ter-mination, an example of which is on page 129.

As for the termination meeting, take the followingaction:

• Get a witness to attend. This person willdocument the employee’s comments.

• Inform the employee that the investigationhas upheld the accusations or events.

• Give the employee the letter of termination.

• For security reasons, escort the employee tothe door in an unobstrusive manner.Employees who are escorted by security orin a manner that implies wrongdoing maysue for defamation.

6. Termination

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Letter for Immediate Termination—Sample

On Tuesday, June 6, we met with you to suspendyour employment pending investigation of the issuesconcerning an alleged charge of sexual harassment.At that meeting we gave you ample time to explainyour actions. Since Tuesday, we have interviewed anumber of witnesses, provided by you and thecharging party, to sort out the facts of the charge.Our findings confirm the allegation made againstyou. As a result, and per our sexual-harassmentprevention policy, we find it necessary to terminateyour employment, effective immediately.

Documentation

The termination letter should be clear and to thepoint. You need to detail the offense, mention themeeting subsequent to that offense, and stressthat an investigation was conducted. For a model,see the sample termination letter I have provided.

PITFALLS AND PRATFALLS OF TERMINATION

As you now know, the decision to terminate is amajor undertaking. In order to prevent a mistake,always ask yourself, “Have I forgotten anythingthat weakens this decision?”


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For example, let’s say you terminate a female em-ployee for poor job performance and she files acharge of discrimination, stating she was fired onlybecause she is a woman. You check out the em-ployee’s records and find her last two performancereviews were not bad. She was rated 3 on a scaleof 1 to 5. You further discover she was just given amerit increase only three months ago. How didthis happen?

Frankly, it should not have happened. The follow-ing list will help you avoid such oversights. Alwaysaudit yourself using this list whenever you arethinking of terminating someone.

Also, I recommend you develop a policy that limitsraises, transfers, and promotions, and include it inyour employee handbook and company policy andprocedures manual. When an employee’s perfor-mance has improved, as defined by the rule ofdeactivation, you can reinstate the privilege. Gen-erally speaking, a process to “limit” begins at thewritten notification level.

6. Termination

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T e r m i n a t i o n P i t f a l l s a n d P r a t f a l l s

➂ Pay raise after a negative performancereview— Consider postponing any raise until

performance has improved.

➂ Positive performance review— Never sugarcoat feedback.

➂ No performance review— Establish regular review cycles. Hold

supervisors accountable forcompletion.

➂ Nothing in the file— Establish a filing procedure.

➂ No signature acknowledging review andreceipt of documents— Establish employee-signing procedure

acknowledging review.

➂ Multiple supervisors-transferringproblems— Establish policy limiting transfers

while an employee is on an activeperformance notice.

➂ Promotions— Establish policy limiting promotions

while an employee is on an activeperformance notice.

7. Specific Problems and Solutions

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7Specific Problems and Solutions

AS WE HAVE SEEN, employee behavioral issuestend to fall into either of two categories: the process-amenable problem and the serious offense. Thefour-step disciplinary process is the best method forproblems traced to a gap in execution; the trainingprocess is the best for problems caused by a gap incomprehension. The former (which have been ourmain focus in this book) include absenteeism,tardiness, poor performance, and minor work-ruleviolations. Suspension, formal investigation and,possibly, immediate termination form the course ofaction for serious offenses. They include fighting,theft, drug use, and forms of harassment.

In this chapter, we will focus on guidelines formanaging two process-amenable problems, absen-teeism and tardiness, and two serious offenses,fighting and harassment. We will also take a lookat preventing problems by putting people first.

Remember: use the following guidelines, and anyothers in this guidebook, in conjunction with yourcompany’s policy and procedure for such issues.


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ABSENTEEISM AND TARDINESS

These two problems are common headaches formanagers. There are two keys to resolving them:

1. Address the problem early on, when youfirst notice it. The average employee missesaround five days of work a year; any morethan that is an issue worth discussing.

2. Look for patterns in the problem behavior.Monday and Friday absences, which createa three-day weekend, are common.

The guidelines below are applicable to both prob-lems. “Cures” specific to each problem will follow.

General Guidelines: Absenteeism and Tardiness

Maintain records.

• Keep accurate attendance records. Look forpatterns; Mondays and Fridays, specialevents or holidays, repetitive reasons forabsence.

• Keep records of instances of tardiness.

Notify problem employee in a timely fashion.

• Make the employee aware that excessiveabsenteeism or tardiness is unacceptable.Define excessive. Follow precedent.

• Solve small problems before they become bigones.


135

Use disciplinary process for violations.

• Follow disciplinary process—verbal, written,and final discussions—when problems arise.

Practice preventive methods.

• Establish expectations at hiring date.• Demonstrate appreciation for good

attendance and punctuality. Publicize theexcellence of those who keep to the rules.

The Unexcused Absence

To help “cure” the unexcused absence, establisha clearly stated call-in policy. An effective policywill state the employee must notify the company,by phone, in the half-hour period before the shift’sstart. The call must be received by the employee’ssupervisor or someone serving in a managementcapacity; calls to coworkers, or notification viacoworkers, do not meet the policy requirements.

Remedy: The UnexcusedAbsence

• Establish a clear policy for absenteeism.

— All absences must be reported within a half hour before start of workshift.

— Three consecutive days of “no call, no show” result in termination documentedas job abandonment.


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— Isolated instances of unexcused absenteeism merit disciplinary action.

• Enforce the policy.

— Again, timely action for violations is crucial.

— Be consistent across employees when enforcing policy. Avoid exceptions to policy.

Tardiness

Always use a step process for tardiness to give theemployee ample time to correct the problem. It isgenerally useful to spell out your expectations inthe verbal discussion. For example, “The nextinstance may result in a written discussion.”

Remedy: Tardiness

• Determine acceptable and unacceptablerates of tardiness. Ensure employees knowwhat they are.

• Always use the disciplinary process fortardiness.

• Note patterns of tardiness and takeimmediate action.

• Discuss with the employee . . .— your course of action— the reasons for the tardy behavior— how to resolve the problem


137

• Ensure consistency from one employee toanother.

• Value punctuality in employees.

Limitation

When reviewing the possibility of discipline forabsenteeism and tardiness always considerwhether the employee’s absences are protected bylaw. The Family Medical Leave Act and theAmericans with Disabilities Act, along with

WorkersCompensation Statutes and Pregnancy LeaveStatutes may limit your ability to discipline. Knowthe reasons behind the absences before you takedisciplinary action.

PHYSICAL ACTS OF VIOLENCE: FIGHTING

There are four keys to dealing with this type ofserious offense:

1. Interview all witnesses to the incident.Who started what is important, especially ifpenalties are set at different levels.

2. Suspend both parties while you investigatethe situation, with reinstatement pendingthe investigation results.

3. Do not telephone either employee with theresults of your investigation. Bring themback to the work site for confidentialdiscussion and action.


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4. If different penalties are handed out, besure you have solid reasons for them andcannot be accused of inconsistency ofapplication.

Normally, discharge is upheld on a first-time basisin cases of fighting and other violent acts. Be sureyou have all the facts before taking such extremeaction.

In investigating the situation, be sure to findanswers to these questions:

• What specifically caused the action?• Was either party acting solely in self-

defense?• Were there witnesses to the actions? If so,

what did they see?• Is this repetitive behavior?

In general, if your investigation finds that bothparties are guilty, termination is the likely re-sponse. Should your investigation reveal that oneparty tried to avoid the confrontation and acted inself-defense, then your likely response is to termi-nate only the aggressor. The bottom line is, thefacts and your own good judgment will dictate yourresponse. If you have any doubts whatsoeverabout the appropriateness of your response, seekthe counsel of your supervisor, Human Resources,and your legal department. As detailed earlier,never make a decision to terminate on your own.


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Document and follow procedures as you havestudied in this guidebook.

HARASSMENT

This is a particularly difficult charge to deal with—and one that is a big issue in today’s workplace. Irecommend that you investigate all claims of ha-rassment, and that you do so in detail, following astandard procedure for investigation.

Types of Harassment

Generally, there are two types: quid pro quo andhostile environment. The first is translatable as“this for that” or “something for something,” andusually, in its most negative context, it has asexual connotation. Examples: “Go out on a datewith me, and I’ll see to it you get a raise,” and“Sleep with me, and I’ll see to it you’re promoted.”Comments such as this are extremely serious andmust not be taken lightly.

The second type, hostile environment, is not ascut-and-dried. Here a supervisor (or an employee)is charged by an employee with having created anenvironment that is so intolerable the employeecannot work. Both this and quid pro quo normallyrequire some investigative work.


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Suggested Investigative Procedure

The following is a sound approach to the investi-gation of this offense. It is key to interview anyoneidentified as the harasser or as a witness to theincident. It is also important to interview any em-ployee identified as a victim of the same conduct.

Investigative Procedure

• Assign investigative team.• Separately interview the charging employee,

the alleged harasser, and all witnesses.• Examine all data.• Determine whether company policy has

been violated.• Decide on corrective action.• Communicate the decision to the parties

involved, that is, the charging party and thealleged harasser.

• Follow up to ensure the harassment isstopped, or discharge the harasser.

Note that harassment, like fighting, is an offensewhere termination can be upheld on a first-timebasis. It depends on the extent, frequency, andnature of the harassment.

The flow chart on page 142 highlights the threequestions of prime importance: Is the issue ha-rassment? Does it require further investigation? Isthe claim substantiated?


141

When interviewing the charging party, always offerthe use of an employee assistance program (EAP).Also, provide a copy of the company’s harassmentprevention policy. This helps to establish a “goodfaith” effort on the part of the company. Questionsto ask the employee during your interview include:

• Who harassed you?• Were there any witnesses?• Why do you feel you were harassed?

Please provide specifics.• Has it happened before? When?• Where did it take place?• What was your reaction to the harassment?

Be sure to note the answers to these questions,and, of couse, always follow them up with appro-priate action.


142

FIGURE 5. Harassment Investigation Procedure


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THE BEST SOLUTION: PEOPLE FIRST

This book is about change, and change is not aneasy task. It is built on a foundation of trust, andmust be part of the organizational culture andopenly embraced by everyone. You can help to es-tablish such a culture by monitoring your actionsand keeping to the simple rule of “practice whatyou preach.”

P L A C I N G P E O P L E F I R S T

� Prioritize and educate your employees onyour short- and long-term goals.

� Establish clear, obtainable objectives andelevating goals.

� Optimize the talents of the workforce—invest in their futures and yours throughdevelopment.

� Penny for your thoughts: ask your peoplequestions; survey them; establish listeningposts; create an open atmosphere.

� Listen and take action; follow up on ideas.

� Empower employees and reward results.

REMEMBER:Informed People Make Informed Decisions!


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I have found that if you place people first, they willplace you first as well—and you can prevent mostproblems from developing. How do you make ithappen? By remembering the PEOPLE anagramand putting it into practice. You may find that youseldom need to worry about taking disciplinaryaction at all.

Appendices

145

Appendices

APPENDIX A

A Ready Reference to the Guidebook

➂ If you want to . . . � then see . . .

• Treat discipline as a method toeffect positive change

Introduction

• Establish a four-step process—Verbal, written, final

Chapter 2

• Distinguish between comprehensionand execution

Chapter 2

• Use phases to ensure consistency— Investigate, Deliberate, Adjudi-

cate, Administrate, Evaluate

Chapter 2

• Establish ground rules— Process, ACT, Equal Treatment,

Communication, Open-Flame Analogy, Rule of Relevance, Right of Appeal

Chapter 3

• Use PEP and TALKTALK Chapter 4

• Use language effectively Chapter 5

• Use termination procedures Chapter 6

• Look into problems and solutions Chapter 7

Document! Document! Document!


146

APPENDIX B

Optional Exercises

These exercises will promote team building, ideasharing, and open communication among themembers of your organization or smaller workgroups. They will also reinforce, through repeateduse, some of the tenets in this guidebook whilealso generating a sense of understanding aboutthe disciplinary process.

1. 360-Degree Feedback

Develop a form you can use to ask your employeestheir opinions about your ability to communicate.

• Are you effective?• Are you informative?• Do you actively and regularly coach?

Have the employees respond anonymously. Con-sider using checklists or similar formats that donot require handwriting (thus better ensuringanonymity). Take the input and problem-solve anycommunication issues with employees.

2. Manager’s Coaching Profile

Use “The Manager’s Coaching Self-Profile” inChapter 1 as an assessment tool that employeescan use to give you feedback on your coaching.Their insights might point you in the direction ofself-improvement.

Appendices

147

3. Disciplinary Action Form

Let your employees critique the disciplinary actionform. It will instill ownership and create aware-ness of it and its intent. Your employees mayprovide additional items of perceived importance.

4. Case Participation

Let your employees work on the exercise “TheCase of John Wasastar” in Chapter 2. It reinforcesthe belief that discipline is necessary in someinstances.

5. Audit

Let your employees audit your current disciplineprogram against this book. For example, do youhave anything similar to a progressive step pro-cess, the five R’s of change, an employment-at-willstatement, or a methodology to distinguish exe-cution from comprehension? Let the employeesdefine the gaps in the program and develop anaction plan on what the organization can do tobridge those gaps.

149

Index

Absenteeism, 133, 134–136, 137documenting, 89–90, 92

Action plan, 36–37, 68, 76, 77, 92Adjudication, in disciplinary process, 36–37Age discrimination, 13Agenda, for performance counseling session, 68Alternatives, disciplinary process and, 34–36Americans with Disabilities Act, 137Anger, diffusing, 77Appeal, right of, 12, 54–55, 56Approvals, of disciplinary action. See Review

processArgumentative employee, handling, 76–77as outlined in this letter, 88as we have discussed, 89At will employment, xviii, 12–15

disclaimer, xviAttendance records, 134Audit exercise, 147Audit team, xvAvailability, counseling and, 75

Behaviorinfluence factors, 21–22optimal state vs. actual state of, 22

Behavior modification, discipline as, 4–5

Case participation exercise, 31


150

Changefive R’s of, xivgaining commitment to, 77–78

Change expectations, 91Checklist

performance counseling session preparation,66–67

termination, 123Clarity, in documentation, 80Closure

final discussion disciplinary letter, 100–101performance counseling session, 70–71verbal discussion disciplinary letter, 87, 93, 94written discussion disciplinary letter, 96, 97, 98

Coaching, 19–23. See also Performance counselingsession

defined, 9–11exercise, 11ground rules, 49

COBRA, 123Completeness, in documentation, 81Compliance, discipline to encourage, 5. See also

Non-complianceComprehension gap, 44, 133

diagnosing, 23–26discipline and, 19, 23vs. execution gap, 20

Confidentialitydiscipline and, 36rules, 122

Index

151

Consistency, 45, 53discipline process and, 30documenting, 38vs. fairness, 50–51ground rules, 51procedural, 11–12

Consolidated Omnibus Budget Reconciliation Act,123

Constructive criticism, 23, 24, 26Constructive discharge, 119Constructive feedback, 61Content, of disciplinary discussion, 62–63Conversations, documenting, 36Correction, discipline as, 3, 5Criticism, 61

Daugherty, Carroll, 56Daugherty’s rules, 56–58Defensible language, 104, 105Deliberation, disciplinary process and, 34–36Discharge. See TerminationDisciplinary action form, 38, 63, 101–104

vs. disciplinary letter format, 83–85exercise, 109–112, 147filling out, 103–104sample, 84, 102

Disciplinary discussion, 7, 24. See alsoPerformance counseling session

Disciplinary ground rulescoaching, 49communicating, 51–52


152

equal treatment, 50–51as legal safeguards, 55–58need for process, 48–49open-flame analogy, 52–53right of appeal, 54–55rule of relevance, 53–54

Disciplinary guidelines, investigation ofperformance issues and, 33, 36

Disciplinary letter, 38, 63sample, 94

Disciplinary letter formatvs. action form, 83–85final discussion, 98–101verbal discussion, 86–94written discussion, 95–98

Disciplinary process, 26–32, 133. See also individualbehavior issues; Performance counselingsession

Disciplinedefined, 2–5introduction to, xi–xiiphases of, 32–42positive change and, xiii–xivrecognizing need for, 17–26vs. training, 25–26

Discipline variety, 30, 32Discrimination charges, 113Discussion. See also Final discussion; Verbal

discussion; Written discussiondefined, 5–8documenting, 38

Index

153

Document validation, 82Documentation, 29–30, 79–80

action form, 101–104defined, 8–9of disciplinary discussion, 63–64, 67. See also

Disciplinary letter formatof disciplinary process, 37–40effective use of language in, 104–108employee-provided, 41of immediate termination, 126, 127, 129letter format vs. action form, 83–85of performance-related termination, 117–118primary goal of, 80–82of termination meeting, 116

Drug use, immediate termination and, 48, 124,133

Due process, 7, 44, 55, 117Daugherty’s rules and, 56–58

defined, 11–12four-step disciplinary process and, 27

EAP. See Employee assistance program, 141Efficiency, discipline as, 2Emotions, 23, 25Empathy, counseling and, 75Employee assistance program, 141Employee behavior

influence factors, 21–22optimal vs. actual state, 22

Employee development, 143–144Employee handbook


154

disciplinary ground rules and, 52employment at will and, 15immediate termination offenses and, 124policy limiting raises, transfers, promotions in,

130right of appeal and, 54–55rule of relevance and, 54

Employee notificationof disciplinary meeting, 65, 67of immediate termination, 128regarding absenteeism and tardiness, 134of termination meeting, 115

Employee signatureon disciplinary documentation, 39on disciplinary letters, 95, 101document validation and, 82procedure for obtaining, 131

Employee-provided documentation, 41Employer audit, to assess liability, xiv–xviiiEmployment at will, xviii

defined, 12–15Enterprise Wire Company, 46LA, 56Equal treatment, ground rules, 50–51Evaluation, 40–42Execution gap, 44, 133

comprehension gap, 20diagnosing, 23–26managing, 23

ExerciseDisciplinary Action Form, 109–112

team building and communication, 146–147

Index

155

using four-step disciplinary process, 31

Fairness, vs. consistency, 50–51Falsification of company documents, immediate

termination and, 124Family Medical Leave Act, 137Federal legislation, employment at will and, 13Feedback, 8, 24

handling, 71–73handling reactions to, 73–74poor, 42–43quality, 42, 43–44

Fighting, 33, 137–139immediate termination and, 48, 53, 124, 133,

138Final action

discussing, 100documenting, 99–101

Final discussion, 28disciplinary letter, 99documenting, 85outline, 99

Final notification, 48Final paycheck, 123Firsthand observation, immediate termination

and, 125–126Follow-up

in disciplinary process, 40–42performance counseling session and, 71timetable for, 68

Follow-up meetings, 70, 93


156

Forewarning, 56, 57Forms

disciplinary action, 84, 102Performance Enhancement Plan, 78

Goals, 91documenting, 38

Hand deliverydocument validation and, 82of final discussion disciplinary letter, 101

Harassment, 139–142. See also Sexual harassmentimmediate termination and, 140types of, 139

Hostile environment harassment, 139, 142Human resources department, 36–37, 123, 126,

128

Immediate terminationdocumentation of, 129fighting and, 48, 53, 124, 133, 138harassment and, 140investigation of, 125–128procedure for, 128violence and, 138

Impact words, 105–108Inattentive employee, handling, 75–76including, 91Influence factors, 19, 21–22Intimidated employee, handling, 75–76

Index

157

Introductionverbal discussion disciplinary letter, 87–89, 94written discussion disciplinary letter, 95, 97, 98

Investigation, xvii, 57for immediate termination, 125–128of harassment, 140–142of performance issues, 33–34regarding resignation, 121

Issue definition, 91Issue development

verbal discussion disciplinary letter, 87, 89–91,94

written discussion disciplinary letter, 96, 97, 98Issue identification, on disciplinary action form,

103

Joint problem solving, discipline as, 5

Languagedefensible, 104, 105effective use of, 104–105impact words, 105–108

Learning, discipline as, 2, 5Legal safeguards, disciplinary ground rules as,

55–58Letter of resignation, 119–121Letter of termination, 117, 126, 128

sample, 129Liability


158

documentation and, 29, 38, 79employer audit to assess, xiv–xviii

Main textverbal discussion disciplinary letter, 87, 91–93,

94written discussion disciplinary letter, 96, 97, 98

Manageras coach, 9–11coaching exercise, 11

Managerial rule, 56Manager’s Coaching Self-Profile, 11Manager-employee signature area, on disciplinary

letter, 86, 94, 98Meeting place, preparation of, 65–66, 67, 116Meeting procedure, for performance-related

termination, 116–117. See also Performancecounseling session

Mentoring, 26Motivational tool, discipline as, 5

Negative-performance notification, discipline as, 5New hire orientation, employment at will and, 15Non-compliance

final discussion and, 99sample statements regarding, 118

Notesfor disciplinary discussion, 63, 67for termination meeting, 115

Index

159

Notice, 53

Objective comments, vs. subjective comments, 6Objectivity, documentation and, 38, 81Offer letter, employment at will and, 15Open-flame analogy, 52–53Opening statements

performance counseling session, 69verbal discussion disciplinary letter, 87–89, 94written discussion disciplinary letter, 95, 97, 98

Organization guidelines, regarding termination,115

Orientation, employment at will and, 15

PEOPLE anagram, 143–144PEP. See Performance Enhancement PlanPeptalk, 60, 76, 77per our discussion, 89Performance counseling session, 59

follow-up, 71format, 68–71gaining commitment to change, 77–78handling feedback, 71–74preparation checklist, 66–67preparation for, 61–67purpose of, 60–61

Performance Enhancement Plan, 75, 76, 77, 78Performance issues, diagnosing, 23–26Performance plan, 91Performance review policies, 131


160

Performance reviews, review of, xviiPerformance-improvement planning, 70Performance-related issues, 133

documenting, 90–91Performance-related termination

documenting, 117–118meeting procedure, 116–117preparation, 114–116sample letter, 120

Personality types, handling difficult, 75–77Personal-progress report, 41Personnel files, xvi, 33, 53–54Policy and procedures manual

disciplinary ground rules and, 52employment at will and, 13, 15policy limiting raises, transfers, promotions in,

130right of appeal and, 54–55rule of relevance and, 54

Positive change, xiii–xivPositive reinforcement, 24Praise, 23, 61Precedent, 33, 34, 58Pregnancy Leave Statutes, 137Preparation

for performance counseling session, 61–67for performance-related termination, 114–116

Preventive methods, regarding absenteeism andtardiness, 135

Problem behavior, response to, 19–23Procedural consistency, 11–12

Index

161

Process, ground rules, 48–49Promotions, policy on, 130, 131

Quid pro quo harassment, 139, 142

Raises, policy on, 130, 131Records, regarding absenteeism and tardiness, 134Reference checks, 122Rehearsal

of disciplinary discussion, 64for termination meeting, 115

Reinforcement theory, 8, 61Release agreement, xviiRelevance, rule of, 53–54Resignation, 119–121Review process, xvi, xvii. See also Right of appeal

of immediate termination, 126, 127regarding violence and immediatetermination, 138–139

of termination, 36–37Right of appeal, 12, 54–55, 56Rules

coaching, 49communicating, 51–52confidentiality, 122consistency, 51

Daugherty’s, 56–58equal treatment, 50–51as legal safeguards, 55–58need for process, 48–49


162

open-flame analogy, 52–53right of appeal, 54–55rule of relevance, 53–54system of as discipline, 3

Salutation, disciplinary letter, 86Samples

disciplinary action form, 84, 102final discussion disciplinary letter, 100–101immediate termination letter, 129non-compliance statements, 118performance-related termination letter, 120verbal discussion disciplinary letter, 88–89, 93,

94written discussion disciplinary letter, 98

Self-control, discipline as, 2–3Sexual harassment. See also Harassment

immediate termination and, 124investigation of, 33

Skills enhancement, 26State legislation

employment at will and, 13regarding termination, 114

Statute of limitations, 53Subjective comments, vs. objective comments, 6Suspension, xvii, 29, 133System of rules, discipline as, 3

Tardiness, 133, 134–137documenting, 90

Terminable offenses, xvii

Index

163

Termination, 28, 38, 113. See also Employment atwill; Immediate termination; Performance-related termination

problems with, 129–131review of, 36–37rules of confidentiality and, 122voluntary, 119–121

Termination checklist, 123Termination letter, 117, 126, 128

sample, 129Termination meeting, documenting, 116Theft, immediate termination and, 124, 133Third party, as witness to termination meetings,

115, 127, 128360-degree feedback exercise, 146Time allowances, 30Timelines, 92

disciplinary action form, 104written discussion disciplinary letter, 96

Training, 133comprehension gaps and, 19, 20, 23vs. discipline, 19, 25–26discipline as, 2

Transfers, policy on, 130

Unexcused absence, 135–136

Verbal discussion, 5, 28, 48documenting, 85outline, 86–87sample disciplinary letter, 94


164

Violence, 137–139immediate termination and, 124, 138

Voluntary termination, 119–121

Warning, 29Weapons, immediate termination and, 124Webster’s New World Dictionary, 2Witness

immediate termination and, 127, 128to termination meeting, 115

Workers Compensation Statutes, 137Worksheet, Employer Audit to Assess Liability,

xvi–xviiiWritten discussion, 5, 28, 48

documenting, 85outline, 95, 97

Wrongful discharge lawsuits, 113

About the Author

TERRY L. FITZWATER is managing partner of FLCLeadership Consulting. His firm specializes in em-ployee relations and organization development.Prior to consulting he spent over 17 years as ahuman resource executive with a Fortune 100company. He is a frequent speaker on variousemployee relations topics and an adjunct facultymember for a local university instructing manage-ment classes. For further information on disciplineand documentation, as well as other topics, youcan contact Mr. Fitzwater at (916) 791-7938 or(916) 791-0692; E-mail,[email protected].