Discipline HR practices

1. Discipline:
A little informed action can make
your job (and sleep) a lot better
May 17, 2010
Stephen Smith, VPHR&LA
With thanks to Jim Tuttle, Lee Lambert,
and AAG Mitch Sachs

2. Training goals
 De-mystify employee discipline; HR’s &
supervisor’s roles
 Overviews of discipline & progressive
discipline
 Corrective actions v. formal discipline
(types of both)
 Investigations & disciplinary procedures
 Review/ second-guessing standards

3. Four mistakes managers make
when disciplining employees
When disciplinary actions fail, usually it’s
because a manager has committed one or
more of four mistakes.
Adapted from HR on Campus

4. Mistake no. 1
Ignoring unacceptable behavior in
hopes that:
a) no one else will notice,
b) it will correct itself, and/or
c) the employee will eventually just go
away
Adapted from HR on Campus

5. Mistake no. 2
Saving up a laundry list of occurrences
in hope that, when added together, they
will justify a bigger penalty
Adapted from HR on Campus

6. Mistake no. 3
Applying rules inconsistently
(unfairness)
Adapted from HR on Campus

7. Mistake no. 4
Applying penalties inconsistently (did
I mention fairness?)
Adapted from HR on Campus

8. Discipline in general
The purposes of discipline include:
1. Provide employees with adequate
information about how their current
performance, attendance or behavior
differs from what’s expected
2. Motivate and assist employees in
changing their performance,
attendance or behavior

9. Discipline in general (cont.)
3. Enhance employee morale and
performance by “showing” that
inadequate performance by fellow
employees won’t just be tolerated

10. Rule of thumb: Similarly situated
employees should receive similar penalties
for similar offenses. (Employees do not
have to receive identical penalties, but if all
relevant circumstances are similar, the
penalties should be similar.)
Rule of other thumb: Major
differences in situation or circumstances can
justify very different penalties.
Adapted from HR on Campus
Discipline in general (cont.)

11. Progressive discipline
You know what it means:
A system that imposes progressively
greater disciplinary measures upon an
employee whose performance continues
to be substandard
Adapted from HRhero.com

12. Progressive discipline overview
(cont.)
Benefits for all:
• Gives employee direct notice of
unacceptable conduct or performance,
and the consequences
• Gives employee an opportunity to
correct unacceptable conduct or
performance

13. Progressive discipline overview
(cont.)
Benefits especially for employer:
• Gives employer assurance that it has
made reasonable effort to obtain the
employee’s best performance
• Gives employer a written record that
will be useful in heading off or
defending any arbitration or lawsuit
that might result from discipline/
discharge

14. Progressive discipline overview
(cont.)
Disadvantages (?):
• Must be consistent
• Must have written documentation
• Doesn’t reward procrastination

15. Types of misconduct subject to
discipline (Pers. Apps. Bd. cases)
 Abuse of fellow employees
 Conviction of a crime involving moral
turpitude [inherent baseness, depravity]
 Excessive tardiness or absenteeism
 Gross misconduct
 Incompetence
 Indolence

16. Types of misconduct subject to
discipline (PAB cases)—(cont.)
 Inefficiency
 Insubordination
 Malfeasance (wrongful conduct by a public
officer or in an official role)
 Neglect of duty
 Willful violation of published employer
rules or regulations
 Violation of policy

17. Misconduct subject to discipline-
collective bargaining agreements
 WFSE/ HE (classified):
• No discipline without just cause (29.1)
• Work nexus required if discipline based
on off-duty activities (28.2)
 SCCFT (faculty):
• Corrective action shall be progressive and
for sufficient cause (Art. XII)
• Dismissal only after corrective action and
for specified sufficient cause (Art. IX.C)

18. Disciplinary procedures-
collective bargaining agreements-1
 WFSE/ HE (classified):
• Must protect employee privacy (29.3)
• Right to request union representative at
investigatory interview or pre-
disciplinary meeting (29.5)
• Notice & response opportunity before
discipline, except reprimands (29.7)
• Discipline may be grieved (29.9) &
usually then arbitrated by AAA (30)

19. Disciplinary procedures-
collective bargaining agreements-2
 SCCFT (faculty):
• Most discipline “grievable” and subject
to arbitration by AAA (Art. XV)
• Notice and response opportunity before
any action re dismissal (Art. IX.D.1)
• Dismissal hearing before faculty-majority
review committee; final decision on
dismissal by Board of Trustees (Art. XI)

20. Disciplinary procedures—
Unrepresented classified & exempt
 Unrepresented classified: WAC 357-40;
Personnel Resources Board
 Administrative exempt employees:
individual employment contracts
• Non-renewal not a panacea (possible
claims of discrimination, retaliation,
violation of public policy, etc.)

21. (1) Corrective action v.
(2) Formal discipline
 Corrective action: where “progressive”
starts
• Informal?
• Not appealable?
 Formal discipline: when corrective action
hasn’t worked
• Employee loses pay
• Subject to grievance and arbitration

22. Distinguish: Correcting vs.
Counseling
 Correcting is an “FYI” factual review
of a perrmance issue or concern, to
ensure the employee understands what
they did was not acceptable.
 Corrective Counseling is “more than
that,” an expression of dissatisfaction
with specific performance

23. (1) Corrective actions—types
(AGO)
1. Oral reprimand—explanation, expectation,
warning (recorded)
2. Written corrective action plan-explanation,
action(s), warning, acknowledged/ signed
3. Memo of concern/ counseling—not quite a
reprimand
4. Written reprimand—personnel file,
“grievable” by represented employees

24. Oral/ verbal reprimand
Oral counseling sessions should be
documented, by:
• a notation on your calendar
• an informal note in the employee’s
personnel file, or
• a regular memo to that file

25.  When to begin
 Over- and under-documentation
 Beware hearsay (non-speaker quoted
as proof of the truth of what was said)
Good documentation is:
• Timely
• Factual/ accurate
• Clear and precise
• Signed and retained
Documentation generally

26. Corrective action writings
A written memo, plan, or reprimand
should include at minimum:
• date and employee’s name
• description of misconduct/ inadequate
performance, including date and
expectation as appropriate
• name & signature of manager/
supervisor taking the action

27. Corrective action plan (1 of 2)
A corrective action plan should include:
1. A statement of the policy, rule or
practice that was violated
2. The steps which the employee
agrees to follow in order to correct
the problem(s)
3. Any commitments of assistance
made by the manager or supervisor

28. Corrective action plan (2 of 2)
4. The time frame for achieving the
improved performance and the
consequences of failure. (No further
action against the employee for that
problem during that period)
5. Language broad enough to include
all conduct which is reasonably
related to the conduct in question
Remember to follow up with further
discipline if appropriate

29. Investigations—generally
 Goal: Discover all relevant information
through a fair process
 Must be prompt
 Scope must be appropriate to concern/
allegations, yet thorough
 Must be objective: Who, What, Where,
When, Why & How

30. Investigations—steps (1 of 2)
 Define issue(s)—not just fishing
 Identify potential witnesses/ sequence,
available documents and evidence
 Evidence can be verbal, written, and/or
physical; cf. demonstrative
 Favorite trick: request drawing of a map
 Witness interviews: plan key questions, use
of documents; listen!

31. Investigations—steps (2 of 2)
 Records of interviews: notes, written/
signed statements, recordings?
 Interview admonitions:
• NO retaliation
• KNOWN un-confidentiality???
 Report: just facts/ findings (no opinions)
 Consult with HR? (Role of HR)

32. Pre-discipline notice &
conference
• Must notify employee & union of
contemplated discipline (except
reprimands) & right to respond—
Loudermill; WFSE 29.7
• Employee gets opportunity to respond
(conference default; writing alternative)
• For conference, be prepared, get to
purpose quickly. Be courteous; give
employee fair opportunity to have his/
her say.

33. Pre-discipline conference (cont.)
• Pay close attention, but don’t argue,
apologize, or say too much. Avoid
sympathetic comments that might be
distorted in later appeal (“sorry ...”).
• Take notes. If the employee does not
dispute the reason, acknowledges that
performance has not been good, or
makes any other statement that supports
the contemplated action, record this.
• If dismissal, ask for alternatives?

34. (2)
Disciplinary action--letter
 From appointing authority, signed
 Summarize progressive discipline history
(or justification for skipping) but avoid
“double discipline”
 Specify misconduct; attach documentation?
 Usually at least 15 days prior to effective
date for pay reduction, demotion, or
dismissal
 Notice of right to grieve or appeal

35. Formal discipline--types
1A. Suspension—15/30 day limits?
1B. Reduction in salary—lower step in
same range for specified time
2. Demotion—to different position with
lesser salary range
3. Dismissal—as follow-up or for extremes
4. Immediate dismissal—good of the service

36. Suspension
As a general rule, each suspension
should be longer than the last.

37. Termination
• Review the personnel file and all
relevant documents, including
performance evaluations, to determine
if the termination is appropriate.
• Ensure that similarly situated
employees have been treated similarly
in the past.

38. Review Standard: Just Cause
(1,2 of 7)
 1. Did the employer put the employee on
notice of the possible or likely disciplinary
consequences of the employee’s conduct?
 2. Was the employer’s rule reasonably
related to the operation of the employer’s
business?

39. Review Standard: Just Cause
(3-5 of 7)
 3. Did the employer, prior to imposing
discipline, determine whether the employee
violated or disobeyed an employer rule or
the employer’s expectations?
 4. Was there an investigation or fact-
finding?
 5. Did the employer obtain substantial
evidence or proof?

40. Review Standard: Just Cause
(6-7 of 7)
 6. Has the employer applied the rules
consistently to other employees?
 7. Was the discipline reasonably related to
the seriousness of the employee’s proven
offense?

41. Lee’s Golden Rule
Most jurors in an employment case will
be asking themselves this question: Did
the employer treat the employee fairly?
(So whether the employee was treated the
way most people would want to be
treated may ultimately be decisive.)
This simply summarizes other more
specific questions:

42. Golden Rule (cont.)
• Was the employee given adequate guidance?
• Was it made clear to the employee that
what he or she was doing was wrong?
• Was the employee given a warning
about the consequences?
• Was the employee treated differently
from other employees?

43. Golden Rule (cont.)
• Is the employer now giving a reason
for the discipline/ discharge that differs
from what the employee was told?
• Were written procedures followed?
• Does the documentation in the
personnel file (especially performance
evaluations) and available evidence
(witnesses?) support the stated reason
for the discipline?

44. Conclusion
 Employee discipline de-mystified:
• Progressive discipline: correction action
plus, if necessary, formal discipline
• Just Cause
• Fairness
 General principles and issue-spotting are the
keys. (You can look up specifics, or call
HR.)