Understanding Progressive Discipline

David VestalDeputy DirectorISAC(515) 244-7181dvestal@iowacounties.org

CCMS Supervisors TrainingBest Inns & SuitesDes MoinesJune 5, 2002

Employee Discipline

Discipline refers to corrective actions taken by a supervisor when an employee does not abide by organizational rules or standards.

Discipline problems come in three categories:

Attendance - unexcused absences, chronic absenteeism or excessive tardiness

Poor performance - failure to complete work assignments, producing substandard work product, failure to meet established work requirements

Misconduct - theft, insubordination, intoxication, falsifying records

Exceptions to this at-will employment doctrine:

1)an employee handbook;2)a union contract;3)promise made by the employer; 4)where public policy prohibits termination5)an actual employment contract6) the law protects the employee’s job

The board of supervisors has ultimate authority over your disciplinary policies.

Progressive Discipline

The county attempts to correct an employee’s behavior by imposing increasingly severe penalties for each infraction.

Progressive discipline has definite advantages:

Reassures employees - they know where they stand

Assures employees that misconduct by other employees will be addressed

Helps justify any employment decision

Progressive discipline also has clear disadvantages:

Difficult to administer - a lot of documentation

Requires a formal, written policy

Locks employer in to certain responses;

Alters at-will status

Progressive Discipline Must Be:

Immediate: To be accepted, discipline must quickly follow the offense.

Understood: It is more likely that the discipline will be seen as fair if it is proceeded by clear warnings

Consistent: Fair treatment demands that punishment be consistent

Impersonal: Penalties should be connected to behavior, not the personality of the violator

Any system of discipline must include:

Rules that are work-related

Adequate notice

Timely and fair investigation

Substantial evidence

Equal treatment

Penalties in proportion to the offense

Performance Reviews

Job-related

Consistent and in a timely fashion

Focus on behaviors

Adequate Notice

Weingarten Principles:

Whenever the employee believes a meeting may lead to discipline

Employee can request representation before or during the meeting

After the request, the employer has three choices:Grant the request and wait for the other employeeDeny the request and end the meetingGive the employee the choice of ending the meeting or proceeding without the representative

Employees must ask for their Weingarten rights.

Anderson v. Douglas and Lomason

1995 Case

Employee was fired for possessing company property

Employee sued stating that he was entitled to the progressive discipline policy

Company had a disclaimer in employee handbook

Court’s Decision

No contract created by the handbook

Progressive discipline language was not mandatory

Employee was an employee at will

Jones v. Lake Park Care Center

1997 Case

Employee was summarily terminated

Company’s progressive discipline policy required a written warning

Handbook was sufficiently definite to create a contract.

She was awarded $370,000 in actual and punitive damages

Skipping Steps

“If a problem is serious, the County may identify the appropriate step to initiate and not utilize the normal sequence.”

Oral Warning

Point out the unacceptable behavior

Explain the purpose for the rule

Explain how the employee’s behavior is causing a problem

Give the employee a chance to respond

Consequences

Specific recommendations

Express confidence in the employee

Document the meeting

Written Warning

Identify your expectations

Explain the consequences of continued misconduct

Document the written warning

Employee should acknowledge it

Place a copy in the employee’s personnel file

Rules for Drafting Good Documents:

Be truthful and accurate

Review the document

Have someone else review it

Destroy all drafts

Contemporaneous is best

Memorialize earlier undocumented events

Documentation Do’s

Be Specific with words, dates and actions

State objectives for future performance

State the consequences of not improving

Have the employee sign to acknowledge receipt

Documentation Don’ts

Don’t delay in documenting the discipline

Don’t write comments that might indicate bias or prejudice

Don’t share disciplinary information who does not have a need to know

Don’t make accusations without proof

Suspension

Paid or unpaid suspension

This time out gives the employee the opportunity to review his behavior

If salaried, don’t discipline by giving unpaid time off for periods of less than one week

Termination meetings

You should:

Prepare what you will say ahead of time

Give an adequate reason for the discharge

Allow the employee to have his or her say

Make it clear that the decision is final

Briefly run through the benefits

Explain your county’s job reference policy

Collect county property from the employee

Termination

If terminated for reasons of dishonesty, immorality or illegal conduct, the employee is entitled to a “name-clearing hearing.”

A person must be notified of their opportunity for such a hearing.

A post-termination hearing is sufficient.

Addendum

“The County reserves the right to conduct any investigation that it deems necessary to determine whether an employee has engaged in conduct warranting discipline.”