Sheila Bryant, Director of Affirmative Action
Carlene Smith, Associate Director of HR
April 17, 2008
To provide a formal and
consistent method for
To facilitate communication
between supervisors and
To promote and maintain job
To determine training needs.
To serve as a partial basis for
salary increases, promotions,
Can be a morale booster
Allows you to keep employees on track
Allows goal setting
Provides means of communication
Creates needed documentation
Helps avoid retaliation claims
An Inflated or Inaccurate
It will be difficult to terminate an employee
who has gotten high evaluations.
It will be difficult to defend the termination
of an employee who has gotten high
evaluations to the EEOC or in a courtroom
before a jury.
Refer to documentation
compiled during the year.
Review job description.
Review Performance Goals
set for the year.
Start with “Meets
Based on documentation,
rate up or down if
Always provide comments or
basis for high or low marks.
Attach additional pages and
copies of disciplinary
Give and allow feedback.
Provide specific, supporting comments.
Be respectful and professional.
Don’t get personal – comment on the
performance, not the person.
Set performance goals together.
Performance goals let employees know the
expectations for their jobs & the standards
they’re expected to meet.
To be useful tools, goals should relate to specific
duties & responsibilities and/or employee
development. (refer to the job description)
Employee & supervisor should develop written
prioritized performance goals that are
measurable, observable and doable.
Action plans for achieving goals will help
employees meet challenges & improve
Employees’ ability to meet performance goals is
the basis for performance appraisals, rewards &
discipline and employee development.
Review employee’s job description for
accuracy and currency.
Meet with employee to discuss your
Indicate that you will evaluate accordingly.
Provide the employee a chance to comply.
If needed, provide reasonable assistance.
Produce it as needed throughout the year.
It should be:
Purpose is to correct employee’s conduct and
warn that repetition of this or similar
behavior can result in discharge.
No disciplinary action involving probation,
suspension or dismissal is to be taken against
any employee until disciplinary action
discussed with HR Director or designated
representative, except when, in judgment of
employee’s supervisor, immediate
suspension is necessary to protect safety of
persons or property or similarly grave
Samples of misconduct not warranting
immediate discharge for first offense but
disciplinary action should be taken:
Improper use of university time
Improper use of equipment
Failure to follow required safety practice
Repeated or unreported absenteeism or tardiness
Disregard for general university policy
Failure to report an accident
Explain how employee has failed in meeting
requirements or how conduct is unacceptable.
Give employee a clear understanding of exact
expectations and why.
Give employee an opportunity to account for
actions or lack of actions.
Take disciplinary action if situation warrants.
All disciplinary discussions should be conducted in
a climate conducive to good understanding and
Supervisors must completely document all
disciplinary actions and ensure that copies (with
employee’s signature acknowledging receipt) are
forwarded to HR for inclusion in personnel file.
Verbal warning – record date of warning and other
pertinent information; maintain in department
Written warning- if orally counseled more than
once during 6 month period; issued by supervisor;
copy forwarded to HR for personnel file
Probation - supervisor consults with division head
and Director of HR. Written probation letter issued
to employee outlining change in status, problems
encountered and desired corrective action.
Employee may be terminated at any time without
notice during probationary period.
Time Off Without Pay – Imposed separately or in
conjunction with probation. Employee is facing possible
termination if performance doesn’t improve. Supervisor
consults with division head and Director of HR to
determine necessity of LWOP and duration of period.
Letter of warning issued and copy placed in HR personnel
file. Division head is final approval authority.
Termination – Supervisor documents recommendation and
discusses with division head; supervisor reviews case with
HR Director; HR Director reviews with division head. If a
decision is made to terminate, division head notifies
employee in writing of the decision.
When immediate suspension is necessary to
protect the safety of persons or property or for
similar reasons, supervisor directs employee to
leave the University premises at once and either
(a) report back to supervisor the following day or
(b) to remain away until further notice.
Procedures regarding Time Off Without Pay to be
Refer to APSU Policy 5:053 Discipline Procedures
for Non-Faculty Employees
At what point do you
start the disciplinary
You see a pattern emerging
absenteeism, missed deadlines
The conduct causes disruption in
A policy or rule is violated
Don’t wait to address the
Don’t diminish or alter
Follow through on “promised”
Produce contemporaneously with conduct
Date of document
Name of employee and supervisor
Name(s) of those present at meeting
Type of discipline
January 26, 2007
To: Sue Smith, Secretary II
From: Tom Jones, Registrar
Re: Verbal Warning
Any prior disciplinary measures taken
Reason(s) for discipline
State facts, not conclusions or assumptions
Provide specific examples
Include dates, times, location, witnesses
Cite any applicable policy or rule
On Jan 12, I counseled you on the need to
report to work on time - 8:00. You reported
to work on Jan 4 at 8:15, on Jan 9 at 8:23 and
on Jan 12 at 9:49. On Jan 18 you came in at
9:13 and today you arrived at 8:43. This
violates Policy II-B(1)(c).
When you are late there is no one at the front
desk to answer the phones or handle walk-ins.
Any progress, or the lack of progress since
last disciplinary action
Be specific; indicate required outcomes by
specific dates if appropriate
When you received the First Written
Warning three months ago (copy attached),
it was expected that you would complete
the scanning and filing for the ABC Project,
and the inventory of software licenses by
Since then, you have finished 6 of the 10
modules of the Project, and you have taken
inventory from 2 departments.
You are expected to have all 10 modules of
the project completed by Feb 22, and have
the inventory of all 10 departments done by
To ensure that you are making satisfactory
progress we will meet each Friday at 10:00.
Any training or assistance that can be offered
Any training or assistance that was provided
- In order to assist you in completing this
assignment, you will attend the Banner
training scheduled for Tuesday, April 1.
- You attended the conference on
electronic file management back in
October 2007 so that you could set up
and manage the office files.
Any corrective action taken
Possible consequence if not corrected
Employee’s response or comments
Signature of employee
Provide signed copy to HR file and employee
If you do not meet these deadlines or make
sufficient progress within the next 5 weeks
in order to meet these deadlines, further
disciplinary action including probation or
termination may be taken.
If you have any questions concerning this,
please let me know.
I have had the opportunity to read this
document, and to ask questions and
provide comments concerning it. I have
also been given a copy of this document.
Prior disciplinary steps
Length of probation with beginning and
ending dates of observable employment
Improvement must be significant and
Possible termination at any time
After a review of your file, including prior
disciplinary actions concerning your
performance (attached), you are being
placed on disciplinary probation effective
The probationary period will be in effect for
3 months of observable performance during
which your employment may be terminated
at any point should there be insufficient
improvement or lack of continued and
continuous improvement in your ability to
carry out the following list of particulars.
Additionally, subsequent to successful
completion of this probationary period, any
instances of unacceptable conduct or
unsatisfactory performance will result in
further disciplinary action, up to and
[List expectations – to do or not to do.]
Failure to comply with any of the items listed
above will lead to your dismissal.
My signature indicates that I have read this
document. I have also had the opportunity
to respond to and to make comments about,
as well as, to ask questions concerning its
Give the employee notice that work is
Counsel the employee on expected
Offer help and assistance in meeting
Ask for feedback and explanation.
Document the meeting.
Religiously make notes to file whether an
employee is being disciplined or not
Stick to the facts: date, time, what happened,
witnesses, discussion with employee, your
Review and use in decisionmaking process
re: next disciplinary step
Review prior to evaluation
1/14 – 20 min late getting back from lunch;
4/21 – didn’t have slides ready for PP for Pres
Council mtg.; had reminded her week before
6/9 – did a great job organizing the staff retreat;
lined up speakers; did presentation on
communication – well received
9/28 – submitted report with numerous statistical
errors; asked her to correct, get to me by 9/29
9/30 – got “corrected” report – still too many
errors. Since due tomorrow, had to correct it
myself. Late getting out. Written warning
Keep in mind that all
documents – including
emails - are public
They will become
evidence in a trial.
Could be less costly than getting a new
advertising and interviewing time
training a new employee
Remediation / Rehabilitation
change, within job description
Plays well to a jury
Have you done everything you could to have
produced a different outcome?
Have prior disciplinary steps been taken?
Was the employee made aware of problems
and possible consequences?
Did you adequately investigate the incidents?
Has the employee had the chance to
Have you thoroughly documented?
Would this be consistent with prior
terminations / discipline?
Does the “punishment fit the crime”?
Is the employee in a protected class?
Is there any basis on which the employee
could claim retaliation?
“It shall be an unlawful employment practice
for an employer to discriminate against any
of his employees…because he has opposed
any practice made an unlawful employment
practice…, or because he has made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding or
hearing [concerning such.]” Title VII
Member of protected class:
race, color, religion, sex, nat’l origin,
Complained or filed a grievance (based on
Cooperated in investigation of grievance
(based on the above)
Engaged on protected activity (e.g.,
amdmt, Whistleblower, workers
To prove a claim, plaintiff must show:
He engaged in a protected activity
He suffered an adverse employment action
There was a casual connection between the
protected activity and the adverse
Accelerated disciplinary action
Sudden enforcement of previously
Assigning more onerous work
Denying ATB salary increases
Giving undeserved negative reference to
Treat complaints of retaliation separately
from any initial complaint
Follow same process to investigate
“At-Will” Employment – may terminate for a
good reason, a bad reason, a mistaken
reason, or no reason at all as long as the
decision was not based on illegal
discrimination, the exercise of a statutory or
constitutional right, or contrary to public
“Honest Belief” rule – stated reason is
considered honestly held if it can be
shown that the employer honestly relied
on the specific facts it was aware of at
the time the decision to fire an employee
Doesn’t have to have been correct or the
best decision, only that decision was
made in good faith that performance was
unsatisfactory and that the asserted
reason was not a mere pretext for
To contradict, employee must show pretext.
Pretext can be shown by establishing that:
- The stated reason had no basis in fact.
- The stated reason didn’t motivate the
- The stated reason wasn’t sufficient to
prompt the termination.
Document the basis for recommendation to
Attach prior disciplinary documents
In termination letter, can summarize basis
for termination, but be inclusive and
consistent with prior and subsequent
Keep HR in the loop during disciplinary
Don’t wait until the day before – or the day
Get the documents in order
Don’t pull the trigger unless everything is in
order and all aspects considered
Allows you to:
Discuss a professional development plan
Maintain dedicated employees
What’s the best way to
defend litigation ?