History of Supervisory Authority - Disciplinary Actions

1. LEADERSHIP
BOOTCAMP
HISTORY OF SUPERVISORY AUTHORITY

2. Bootcamp Agenda
Part I
• The principle that forms the source of
authority in an employment relationship
• The principles that form “duties” and
responsibilities in an employment
relationship
• Another role of a job description

3. Definition of Agent & Principal
• An agent is person employed to do any act
for another or represent another in
dealings with third persons.
• The person for whom such acts are done
or who is represented is called the
principal.
• The contract which creates relationship of
principal & agent is called an agency.

4. Agency Relationship
This Photo by Unknown Author is licensed under CC BY-SA-NC

5. Agency
When is Agency created (as of the 18th
Century)?
• One party (Servant) agrees that he/she
will act in behalf of the other (Principal)
• The Servant is subject to control of the
Principal/Master
• The Principal/Master tells the Servant
what to do and how to do it
• Both parties agree to an agency
relationship
“A servant is an agent…whose physical conduct
in the performance of the service …is subject to
the right of control by the master.” -
Reinstatement (Second) Section 2(2)

6. Authority
Granting
of Power
• If the principal tells the agent to do
something, he gives the agent “actual
authority” to do it.
• Authority to conduct a transaction includes
authority to do acts which are incidental to it,
usually accompany it, or are reasonably
necessary to accomplish it. Implied
Authority
• If the principal tells a third party that the
agent has authority, he gives the agent
“apparent authority” whether or not the
principal told the agent himself he was
authorized.

7. Tort Liability
• Respondeat Superior - Courts hold
principals liable for the torts their agents
commit.
• Principals are not liable for all the torts
their agents commit. They are liable
only for those their agents commit
“within the scope of their
employment.” (applies to volunteers
too)

8. Origins of “Duty”
in Employment
• Developed along with the concept of “employment at will”
• The doctrine of employment-at-will emerged in the nineteenth century in the United States in a climate
of laissez-faire expansionism, social Darwinism, and rugged individualism.
• It is often referred to as Wood's Rule, named after Horace C. Wood, who articulated the doctrine in an
1877 treatise Master and Servant.
• Wood's view of employment relations was shared by most of his legal contemporaries
• Agents owe their principal a duty of loyalty and a duty of care.*
*Reading v. Regem, (1948) 2 K.B. –a principal may confiscate an agent’s earning if the agent
earned through the perquisites of the job
*Tarnowski v. Resop, 51 N.W. 2nd ( Minn. 1952) – all profits made by an agent in the course of an
agency belong to the principal
• The Restatement (Second) of the Law of Contracts – Agency was a contract of employment –
definitions applicable to employer-employee relations (1958)

10. The Introduction
of “Duty”
Agents owe their principals a duty of
loyalty and a duty of care –
Reinstatement (Second) of Agency
1958

11. Reinstatement
(Second)
• “Unless otherwise agreed, an agent is
subject to a duty to his principal to act
solely for the benefit of the principal in
all matters connected with his agency”
Duty of Loyalty
• “Unless otherwise agreed, a paid agent
is subject to a duty to the principal to act
with standard care and with the skill
which is standard in the locality for the
kind of work for which he is employed to
perform and, in addition, to exercise any
special skill that he has”
Duty of Care

12. Elements of Duty of Loyalty
• Exercise their powers in good faith and in the best
interest of the organization
• Avoid conflicts of interest
• In the normal course of business, treat as confidential
all matters involving the organization (until there is
general public disclosure or the information is a matter
of public record or common knowledge)

13. Duty of Obedience
Take action in a manner consistent with the purpose of the
organization
Comply with applicable state and federal laws that relate to the
organization and the manner in which it conducts its business

14. Duty to Act in Good Faith
•Obligation to act honestly in purpose and in deed.
•Act consistently with the organization’s goals and
values.

15. Authority vs Responsibility
• Authority – ‘Authority’ means ‘Legal or rightful power, a right to
command or to act’. Applied to the managerial jobs, the power of the
superior to command the subordinate to act or not to act in a particular
manner, is called the ‘authority’.
• Responsibility – It is an obligation of a subordinate to perform assigned
duties. It is always bonded between superior and sub-ordinate. When
superior assigns any duty or work to a subordinate by his authority it
becomes a responsibility on the part of sub-ordinate to perform that duty.

16. A Duty Creates Authority and
Responsibility
• A duty must be expressed either in terms of function or in terms of objectives. If a
subordinate is asked to control the operation of a machine, the duty is in terms of function.
But if he is asked to produce a particular number of pieces of a product, the duty is in
terms of target or objective. Determination of duties in terms of objectives will enable
the subordinate to know by what standards his performance will be evaluated.
• Responsibility comes to an individual as soon as he accepts a job to be performed by
him.
• Answerability to the superiors regarding completion of the job in conformity with the
directions is called accountability.

17. Authority, Responsibility,
Accountability
• Authority, Responsibility and Accountability are inter-related. Authority denotes granting of power.
Responsibility indicates to satisfactory completion of obligation and accountability refers to
answerability regarding one’s work and conduct.
• Authority could be delegated; however, responsibility can be shared but cannot be delegated.
Accountability neither can be shared nor delegated. One has to answer about his work and conduct.
• The accountability arises only because there is an authority, the aim of which is to get the decision
carried out with fuller responsibility.

18. Factors Determining the Limits of
Authority
External Factors:
• Government rules and regulations
• Collective bargaining and agreements
Internal Factors:
• Corporate laws and organization chart
• Budgets
• Policies, rules and regulations
• Job description

19. Part II –
Prerequisites -
Why & When
Disciplinary
Action Should
Occur
What
establishes a
violation or
breech of the
employment
relationship?
Who has a
“duty” to
address
breeches of the
employment
relationship?
The intent,
effect, and
perception of a
policy.
The ABA
Employee
Disciplinary
Policy

20. The
“WHY” of
Disciplinary
Action
• Agency Relationship
• Principal’s Authority
• Principal’s Duty
• Employee’s Duty - “…usual standards expected of
an employee [to provide] honest, faithful and loyal
service in accordance with his ability”*
• *Chiodo v. General Waterworks Corp.

21. Disciplinary
Action
Why disciplinary action should occur
When should disciplinarily occur
Intent, Effect, Perception of a Policy
The ABA Disciplinary Policy

22. Why
Disciplinary
Action
Should
Occur
When a supervisor assigns any duty or
work to a subordinate by his authority it
becomes a responsibility on the part of
subordinate to perform that duty.
Determination of duties in terms of
objectives enabled the subordinate to
know by what standards his
performance will be evaluated.
The objective of a duty has not been
achieved and/or has not been
performed as per the standards
communicated.

23. When
Should
Disciplinary
Action
Occur
Coaching has not been
successful
Training has not been
successful
Resources are not being
utilized

24. The “Why” of
Disciplinary
Action CORRECT BEHAVIOR AND
DOCUMENT ISSUES
PREVENT NEGATIVE IMPACT
ON THE ORGANIZATION

25. What Causes
a Breech of
the
Employment
Relationship
• Standards Set by Performance and Conduct
Expectations Not Met
• Job Description
• Essential Duties
• Essential Competencies
• Essential SKAO
• Standards Set by Policy Not Met
• Code of Conduct
• Basis for Disciplinary Action

26. Intent,
Effect, and
Perception of
a Policy
• The “intent” of a policy is its goal – how employees
should act or perform – how to address employees that do
not act or perform as expected – to obtain consistency and
designate severity of punishment
• The intent of a policy does not come into fruition until it is
put into practice
• The effect of a policy is “how does it actually work in
practice”
• Perceptions of a policy include, is it fair? Is it
consistently applied to everyone the same? How well is
it accepted?

27. What is Employee Discipline?
Discipline is not punishment – it is an opportunity to learn
Negative sanctions will only succeed when:
• the employee values what is taken away or fears what is threatened.
• the employee sees the sanction as fair, and consistent with the "offense".
• the employee acknowledges and respects the right of the manager to impose the sanction.
Unless these three elements are in place, employees respond to punishment
with resentment, and counter-attacking, either covertly or overtly.

28. Discipline is an Opportunity to Learn
Consider discipline in its original sense, as an opportunity for the employee to learn
• Discipline comes from discipulus, the Latin word for pupil or disciple
The traditional notion of disciple is of “a person who learns from one s/he follows.”
Discipline, in this approach focuses on what the employee must learn in order to
bring his/her behavior in line with the needs and expectations of the organization.

29. Discipline Is Not An I-You Confrontation
Discipline is not something done to an employee, it is something done with an
employee.
Consider discipline as requiring you and the staff member to work together to
solve a problem.
The fundamental task, when possible, is to create a situation which encourages
the staff member to work with you to identify causes of problematic behavior,
and to take action to correct those problems.
Discipline needs to be a "we process"

30. Too Late, Too Late
• Do not be TOO slow to respond to an
emerging issue or problem. There are a
number of reasons for this:
• tendency to see an emerging problem
(e.g.. a first instance), as a quirk, a fluke,
or accident, and something not worth
addressing.
• desire to have harmony
• perception that discipline is a cause of
disharmony
• simple dread

31. Too Late, Too Late
• It is very important that inappropriate behavior or actions in the
workplace be, at minimum, noted, and the fact communicated with the
staff member, right at the first occurrence.
• Delay is problematic in that it sends a message that undesirable
behavior will be accepted or even not noticed.
• Delay can have an adverse effect on a supervisor later, if the problem
increases in frequency and intensity so it cannot be ignored.
• When a problem is allowed to grow, an emotional reaction toward the
employee develops that makes constructive interaction difficult.
• Addressing an occurrence early need not be a lengthy difficult
discussion, particularly if the event is relatively minor. The really
lengthy, unpleasant discussions tend to occur as a result of not
addressing problems early on.

32. A Non-Progressive Approach
• Progressive discipline starts with the least possible use of
power and disciplinary action, and over time, will involve
stronger actions, if the situation continues.
• Avoid waiting to take disciplinary action until action
must be taken, when the situation has become so severe
that it must be addressed immediately.
• Non-progressive measures (harsh initial action),when
applied to a long time, but not addressed problem, often
seem too harsh by the employee, and on occasion, by
their coworkers.
• Start with least forceful action as early as possible, unless
of course the offense is so severe that it requires
immediate harsh action.

33. Missing Root Causes
• In some cases, a problem employee may require a hard
approach particularly if they have the skills to do what is
desired but have not been applying the skills for one
reason or another, related to motivation.
• Sometimes an employee is not succeeding because they
lack the skills (even if they are not aware of the skill
deficit).
• Sometimes an employee is not succeeding because they
have underlying personal or psychological problems.
• Sometimes an employee is not succeeding because the
system in which s/he works is not set up to engineer
success.

34. Before You Take Disciplinary Action
Can you attest to this happening…
The employee knows and understands that - employees are expected to meet acceptable
performance standards and comply with policies and procedures at all times.
Did you…
Supervisors shall coach and counsel employees to
ensure employees understand these expectations and to provide necessary correction
and training.
If you can substantiate you did the above, then you can do this…
• When an employee engages in unacceptable conduct or fails to meet acceptable
performance standards, disciplinary action may be imposed.

35. If it is not in
writing, it doesn’t
exist

36. Prerequisites to Disciplinary Action
Performance standards are
published and known by the
employee
The policy violated was
known by the employee
Did the employee have the
KSA’s when hired or
promoted?
Was the employee trained
and the KSA’s acquired and
demonstrated?
Did you notify the employee
of the performance or
conduct problem(s)?
Did you coach the employee
and attempt to improve
his/her performance or
conduct?

37. Quick Quiz
Where do performance standards for your employee’s come from?
Which policies set standards?
What causes a breech of the employment relationship?
Who puts a policy into effect?
When does a work responsibility start?
True or false: Disciplinary action usually works on an employee that is not motivated.
What is the difference between progressive discipline and the opportunity to learn?
Which comes first, coaching or progressive discipline?

38. Intent of the Discipline Policy
THE ABA’S DISCIPLINE SYSTEM IS
DESIGNED TO PROVIDE THE EMPLOYEE
NOTICE
AND AN OPPORTUNITY TO CORRECT
CONDUCT OR PERFORMANCE
DEFICIENCIES.

39. Caution!
The following discussion applies to
the “form” of a disciplinary action.
The “content” of any supervisor
produced documentation is the focus
of the March 26 session on
Exceptions to Employment at Will
Reason: what you say can come back
to bite you

40. How Do You
Know?
“it’s not what you
know, it’s what you
can prove”
That the cause is insufficient training?
That the cause is lack of knowledge?
That the cause is poor understanding of
duties or how to perform them?
WHAT IS YOUR PAPER TRAIL? HOW CAN
YOU PROVE IT?

41. Insufficient Training =
Negligence
“Employees should be provided
effective education and training in
cases in which such education and
training would result in better
organizational and individual
performance.”

42. Employee Discipline Policy
All employees should be
provided sufficient training to
ensure they have been prepared
to perform their duties to the
expected standard(s).

43. How Do You Train
Your Employees?
List the different ways you train
your employees to give them the
skills and knowledge to do the job.
How do you document the training?
How do you measure the
effectiveness of the training?

44. End of First Session