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Disciplining
Employees
Kate Bischoff
Employment Attorney
Zelle Hofmann
Performance vs. Misconduct
Performance
• Problems doing the job
• Usually trying their best
• Lack of intention to
cause a problem
• Additional training
mentoring can resolve
issues
• Will not do the job
• Willful action or
repeated neglect
• Know consequences exist
• No training can resolve
Misconduct
Important Considerations for Both
• Consistency
• Implicit Bias
– Harsher to any particular protected class
– Women, minorities get more scrutiny?
• Examples, Examples, Examples
• Documents!
Performance
• How an employee DOES his job
• Examples of poor performance:
– Using the wrong tool
– Failing to understand Code
– Wrong numbers
– Wrong process
• Can he improve?
• Can he learn?
Addressing Performance Issues
• Discussions with staff
• Understand expectations
– Annual reviews
– Regular performance talks
• Documentation
– Emails
– Texts
– Formal Performance
Improvement Plan
– Training
Performance Improvement Plan
• What’s the issue?
• Did the employee
know the expectation?
– Position description
– Job posting
– Work direction
• Did the employee
know this was a
deficient performance?
Performance Improvement Plans
Performance Improvement Plan
• How going to get to the goal?
– Training
– Mentoring
– Supervision
• Your obligation too
Meet Performance Goal?
• Meets the goal? Yes!
• Doesn’t meet the goal?
– Demotion/Reassignment
– Termination
• Documentation?
– Personnel file
– Supervisor file
Misconduct
What is Misconduct?
Generally not related to performing the
actual job
Misconduct Examples
• Attendance issues
• Driving misconduct
• Theft
• Violations of policies
– Harassment
– Confidentiality
– Safety
• Illegal drug use
• Horseplay or violence
Need a List of Misconduct?
No.
Policy
Your conduct is an important factor
affecting the Company’s success. When an
employee’s conduct is unsatisfactory,
insubordinate, threatening, disruptive,
intimidating, or violent, disciplinary action
may be taken. Disciplinary action may
range from an informal discussion to
immediate involuntary termination.
Union Environment
• May be very different.
• May have bargained over the content of a
conduct or disciplinary policy.
Progressive Discipline
• Verbal Warning
• Written Warning
• Suspension
• Termination
If Not Unionized…
Savings clause:
• Employees who violate this policy may be
subject to discipline, up to and including
immediate termination of employment.
• The Company determines discipline on a
case-by-case basis and may not follow any
progressive discipline practice given the
circumstances of each case.
Misconduct Happens
• It happens!
• You can’t
control it!
How to Discipline
Disciplining an Employee
• Not easy
• Requirement of
management &
supervisors
• Necessary to maintain
morale
Before Disciplining the Employee
• What’s been done
before?
– Consistency
– If outside of norms, why?
• Status of the employee
– Leave?
– Protected class?
– Recent complaint?
• Document!
– The misconduct
– The decision
– The discussion
– The consequences
Documentation
• Evidence of misconduct
– Email/note from supervisor
– Timesheet/speeding ticket/photos (if any)
Documentation
• Discussion of misconduct
– Email/note(s) from discussion with supervisor and
decision maker
– References to any policies
• Written discipline
– Even if a verbal warning
Juries believe documents more than employers
A Few Words about Email
• Hard to lose or destroy
• Timely
• Easy
• Timestamped
• Password protected
• Makes for great evidence
But Don’t…
• Add unnecessary
opinion
• Would you like
the email read to a
jury?
• Discipline via
email!
The Meeting
• In person whenever
possible
• Usually pretty short
• Should NOT look
like this 
The Meeting
• Explain the situation
• Ask to confirm misconduct
– Could have a reasonable explanation
– Give time to explain
The Meeting
• Ask if understood expectation or why
conduct requires discipline
• Explain consequences
– What it means for work
– What it means to you
• If true, express belief employee will
improve
• Recap meeting with notes or email
Refuses to Sign
• Want employee to
acknowledge misconduct
• Refusing to sign means
nothing
• Note the employee
refused to sign
What NOT to do
• Don’t take action out of anger
• You may have to explain yourself
Termination Hot Spot
Social media implicates many different
areas in employment law – discrimination,
privacy and labor relations – and gets both
employees and employers in trouble.
Discrimination or Good Term?
Privacy Issues
• Can’t go into social media accounts
without express permission
• Can’t ask for passwords and usernames
• Don’t monitor
– If something comes up, it will come to you
Unfair Labor Practice or Good Term?
What should you do?
• Take a breath
• Walk through a decision with a trusted
colleague or other advisor to check logic
• What has happened in the past?
– Consistency
– Explain deviations from norm
• Don’t hesitate to call a lawyer
– We’re cheap at the start
– We get expensive after
What about “at will employment”?
At will employment is not a get
out of jail free card.
Questions?
Kate Bischoff
(612) 336-9125
kbischoff@zelle.com
www.zelle.com

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Employee Discipline.PPTX

  • 3. Performance • Problems doing the job • Usually trying their best • Lack of intention to cause a problem • Additional training mentoring can resolve issues • Will not do the job • Willful action or repeated neglect • Know consequences exist • No training can resolve Misconduct
  • 4. Important Considerations for Both • Consistency • Implicit Bias – Harsher to any particular protected class – Women, minorities get more scrutiny? • Examples, Examples, Examples • Documents!
  • 5. Performance • How an employee DOES his job • Examples of poor performance: – Using the wrong tool – Failing to understand Code – Wrong numbers – Wrong process • Can he improve? • Can he learn?
  • 6. Addressing Performance Issues • Discussions with staff • Understand expectations – Annual reviews – Regular performance talks • Documentation – Emails – Texts – Formal Performance Improvement Plan – Training
  • 7. Performance Improvement Plan • What’s the issue? • Did the employee know the expectation? – Position description – Job posting – Work direction • Did the employee know this was a deficient performance?
  • 9. Performance Improvement Plan • How going to get to the goal? – Training – Mentoring – Supervision • Your obligation too
  • 10. Meet Performance Goal? • Meets the goal? Yes! • Doesn’t meet the goal? – Demotion/Reassignment – Termination • Documentation? – Personnel file – Supervisor file
  • 12. What is Misconduct? Generally not related to performing the actual job
  • 13. Misconduct Examples • Attendance issues • Driving misconduct • Theft • Violations of policies – Harassment – Confidentiality – Safety • Illegal drug use • Horseplay or violence
  • 14. Need a List of Misconduct? No.
  • 15. Policy Your conduct is an important factor affecting the Company’s success. When an employee’s conduct is unsatisfactory, insubordinate, threatening, disruptive, intimidating, or violent, disciplinary action may be taken. Disciplinary action may range from an informal discussion to immediate involuntary termination.
  • 16. Union Environment • May be very different. • May have bargained over the content of a conduct or disciplinary policy.
  • 17. Progressive Discipline • Verbal Warning • Written Warning • Suspension • Termination
  • 18. If Not Unionized… Savings clause: • Employees who violate this policy may be subject to discipline, up to and including immediate termination of employment. • The Company determines discipline on a case-by-case basis and may not follow any progressive discipline practice given the circumstances of each case.
  • 19. Misconduct Happens • It happens! • You can’t control it!
  • 21. Disciplining an Employee • Not easy • Requirement of management & supervisors • Necessary to maintain morale
  • 22. Before Disciplining the Employee • What’s been done before? – Consistency – If outside of norms, why? • Status of the employee – Leave? – Protected class? – Recent complaint? • Document! – The misconduct – The decision – The discussion – The consequences
  • 23. Documentation • Evidence of misconduct – Email/note from supervisor – Timesheet/speeding ticket/photos (if any)
  • 24. Documentation • Discussion of misconduct – Email/note(s) from discussion with supervisor and decision maker – References to any policies • Written discipline – Even if a verbal warning Juries believe documents more than employers
  • 25. A Few Words about Email • Hard to lose or destroy • Timely • Easy • Timestamped • Password protected • Makes for great evidence
  • 26. But Don’t… • Add unnecessary opinion • Would you like the email read to a jury? • Discipline via email!
  • 27. The Meeting • In person whenever possible • Usually pretty short • Should NOT look like this 
  • 28. The Meeting • Explain the situation • Ask to confirm misconduct – Could have a reasonable explanation – Give time to explain
  • 29. The Meeting • Ask if understood expectation or why conduct requires discipline • Explain consequences – What it means for work – What it means to you • If true, express belief employee will improve • Recap meeting with notes or email
  • 30. Refuses to Sign • Want employee to acknowledge misconduct • Refusing to sign means nothing • Note the employee refused to sign
  • 31. What NOT to do • Don’t take action out of anger • You may have to explain yourself
  • 32. Termination Hot Spot Social media implicates many different areas in employment law – discrimination, privacy and labor relations – and gets both employees and employers in trouble.
  • 34. Privacy Issues • Can’t go into social media accounts without express permission • Can’t ask for passwords and usernames • Don’t monitor – If something comes up, it will come to you
  • 35. Unfair Labor Practice or Good Term?
  • 36. What should you do? • Take a breath • Walk through a decision with a trusted colleague or other advisor to check logic • What has happened in the past? – Consistency – Explain deviations from norm • Don’t hesitate to call a lawyer – We’re cheap at the start – We get expensive after
  • 37. What about “at will employment”? At will employment is not a get out of jail free card.

Editor's Notes

  1. Exactly what you want to accomplish How will she demonstrate she is meeting the goal How is this tied to the job
  2. Rapid Global Business Solutions supervisor Kelsey Rossey acknowledged that Banks’ comment was an expression of his religious convictions, but “the tone of the comment … was discrimination in and of itself and that’s not something that we can protect.” -
  3. http://www.natlawreview.com/article/nlrb-holds-employee-s-obscene-facebook-post-criticizing-supervisor-protected