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NICE GUYS END UP IN COURT: DOCUMENTATION, DISCIPLINE AND DISCHARGE: A PRACTICAL GUIDE

TO EMPLOYEE DISCIPLINE

APA MeetingAPRIL 18, 2019

Penelope J. Phillips

(612) 373-8428pphillips@felhaber.com

The best way to prove that you did not have a bad reason (a/k/a an illegal reason) is to be in a position to show you had a good reason.

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How do you demonstrate you had a good reason?

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Even though in most cases you are not required to so legally: Follow the general principles of

progressive discipline (a/k/a just cause);

and Document, Document, Document.

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Notice; A conclusion properly supported as a

result of an investigation conducted by a trained professional (this means you can’t do your own investigation);

A punishment that fits the crime; and Consistent and timely action.

WHAT ARE THE COMPONENTS OFDEFENSIBLE DISCIPLINE?

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Excessive absenteeism Insubordination Falsifying employment application Theft Unsatisfactory performance

WHAT IS “JUST CAUSE” (A/K/A A “GOODREASON”) TO TAKE DISCIPLINARY ACTION?

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Verbal warning TIP: Verbal warnings should always be in writing.

Written warningSuspensionTerminationSkipping steps TIP: Remember that progressive discipline is not

lockstep.

WHAT KIND OF DISCIPLINE? (PROGRESSIVEDISCIPLINE IF APPROPRIATE)

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Document, Document, Document

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You get to tell your story.Written records make up for fallible

human memories.Documentary evidence is given greater

weight than individual recollections.

BENEFITS OF DOCUMENTING

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Documentation may establish like treatment of other employees.The persuasive impact of a system in a

judicial setting.To show actual lines of decision.To discipline the decision-making

process.

BENEFITS OF DOCUMENTING (CONT.)

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Formal versus informal documentation.

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What should documentation look like?

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Name of employee Name of supervisor Date Discipline Oral WarningWritten Warning Suspension Termination

Details of problem Reason for discipline

KEY CHARACTERISTICS-WHAT DOCUMENTATIONSHOULD INCLUDE RECORD OF DISCIPLINARY ACTION

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Employee comments Supervisor’s

expectation for the future

Employee and supervisor signature

“By this form, I am only acknowledging that I have received a copy of this Notice”

Formal: in the employee’s personnel records with a copy to the employee for inspection and comment.

Informal: supervisor(s) file.

WHERE SHOULD THE DOCUMENTATION GO?

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Timely preparationAccurate and comprehensiveDescribe previous problemsProvide guidepostsConsistentNonjudgmental/Non-ConclusoryPlain EnglishAvoid extraneous materialExhibit quality

PRACTICAL TIPS FOR DOCUMENTATION

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If you don’t prepare documentation in a timely manner, documentation can look like you prepared it to justify an action. E.g., manager documents prior instances of

work performance only after giving the employee her final written warning.

TIMELY PREPARATION

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Supervisor prepares a disciplinary memorandum on a Friday to address an employee who has just exceeded the level of absenteeism that the employer deems acceptable.

The supervisor dates the memorandum for the following Monday because that is the day she intends to meet with the employee to discuss the matter.

TIMELY PREPARATION

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On Saturday the distraught employee sends the Supervisor an e-mail describing how he has just been diagnosed with cancer, will need time off for surgery and therapy, and thanking the supervisor for her support and understanding.

On Monday, before the supervisor gets the chance to read the e-mail, she meets with the employee to administer the discipline and give him the memo.

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The employer will now be faced with the difficult challenge of overcoming the appearance of retaliation and possible discrimination because of the inaccurate dating of the memo even though the disciplinary decision and the memo both preceded the employer’s knowledge of the employee’s condition.

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Good:During the past three weeks, you have missed

three of the fifteen shifts for which you were scheduled, and on each occasion, you failed to notify your supervisor in advance that you would be absent in violation of call-in procedures. These unexcused absences occurred on [list dates].As a result of your unexcused absences, the

department missed 10 shipment deadlines and had to reassign work to others.

ACCURATE AND COMPREHENSIVE

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Bad:Two managers attend a meeting with Ernest,

a poor performer. After the managers issue a written warning to Ernest, he replies: “You can take this job and shove it. I ain’t work’n here no more.”Manager 1 documents the incident and

states: “Employee responded by using profanity and threatened to hit me with a shovel.”

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Manager 2 documents: “Employee expressed his dissatisfaction with the written warning and indicated a desire to seek other employment opportunities.”

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Good:This is your opportunity to correct your

unsatisfactory attendance. I need someone to successfully fulfill the duties of the position. In order for your performance to be considered successful, you most maintain regular sustained attendance as prescribed in our attendance procedures, have no unexcused absences and utilize the prescribed call-in procedures if you are to be late or absent.

PROVIDE GUIDEPOSTS FOR THE EMPLOYEE

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Bad:You need to get it together man, have

you been taking your meds?

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Good:“On [date] you were given a verbal

warning for unexcused absences and on [date] you were given a written warning for unexcused absences and failing to follow call-in procedures. I have also discussed your unsatisfactory attendance with you on your most recent performance evaluation of [date].”

DESCRIBE ANY PREVIOUS PROBLEMS

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Bad: I told you last time, stop this poor

performance immediately.

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Bad:“I thought we were friends before this

happened.”“I know you think this discipline is

probably because you are [Swedish/ Finnish/Turkmenistai / etc.].”“Perhaps Joe could benefit from

psychotherapy to deal with his uncontrolled anger issues.”

AVOID EXTRANEOUS MATERIAL

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“It seems like Jill’s behavior is just one more piece of evidence that the employees would be better off without a union.”“If there are no additional violation of this

type by December 31, this discipline will be null and void.” [Employee will inevitably re-offend on January 5.]

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“I intend to meet with Joe every Monday during the next six months to see how he is progressing.” [It is unlikely that you will meet every Monday.]“I intend to do everything possible to

make this situation work so that Sally will succeed in this new role.” [You can not.]

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Bad:Your continued refusal to abide by our

dress code, obviously because of some concocted religious belief or some cultural heritage thing is unacceptable….

“EXHIBIT QUALITY”

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Good:You have indicated that your religious and cultural

beliefs conflict with our dress code, which requires individuals in our manufacturing division to shave or trim facial hair. We maintain such a policy because the manufacturing of medical devices must take place in a sterile field and facial hair tends to contaminate the sterile field. We have offered you several workplace modification including wearing two face masks or transferring to an open position in a different division, but you have refused. While we remain willing to explore with you further workplace modifications…”

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Example #1: “Juan Ortiz given his name is obviously a Mexican national…”

Example #2: “Billy, a pleasant Lutheran….”Example #3: “Due to your excessive

amount of FMLA leave this year…”There are NO acceptable alternatives

here.

AVOID REFERENCE TO PROTECTED CLASSES

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The kitchen sink; Inaccurate documentation;

Selective or inaccurate evaluation of employee performance; and

Sloppy expression of promises.

POTENTIAL DOCUMENTATION PITFALLS-PRIME WAYSPAPER CAN COME BACK TO HAUNT EMPLOYERS

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Address the main reason for the employee’s discipline and avoid the temptation to cite every flaw.

TRAP NO. 1: THE KITCHEN SINK

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Minnesota (or Iowa, North Dakota, etc.) nice in performance evaluations.

Do not soft-peddle difficult issues or problems: Provide specific examples of behaviorsBe objective

TRAP NO. 2: INACCURATE DOCUMENTATION

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Document continued performance problemsIf an employee has on-going performance

problems address it and document it using a Performance Improvement Plan (PIP) or Corrective Action Plan (CAP)Do not rely on repeated, informal oral warnings.

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Ensure that your “chain” of documentation is consistent and that it follows a logical progression (i.e., oral warning, written warning, suspension, etc.)

Set a mandatory schedule for managers to complete performance evaluations, and hold managers accountable if they do not comply by bringing it up at their evaluation.

Do not use the performance evaluation process to try and make friends.

Be sure to follow up – do not wait until next year to address on going performance issues.

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Be optimistic, the employee may change his ways.

If using progressive discipline, let the process work, allow the employee sufficient time to correct the problematic behavior.

Be patient. Do not rely upon petty infractions to justify termination.

SNATCHING DEFEAT FROM THE JAWS OF VICTORY

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Some words used to describe employee misconduct have legal significance and, therefore, if used inappropriately, can fuel a discrimination of defamation claim.

AVOID USING WORDS WITH LEGAL SIGNIFICANCE

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Think like a lawyer (if you can bear it!) documenting employee issues. Bill “fraudulently” obtained his

employment. Say instead: Bill misrepresented his

work experience on his employment application….

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Suzy used “sexually harassing “ language toward Bob…

Say Instead: Suzy said “****” and “%%%%” to Bill after she tried to tuck in his shirt. These are inappropriate comments of a sexual nature and violate the company’s policy on harassment and offensive behavior…

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Lulu “stole” some paperclips from the central store room.

Say instead: Based on three eyewitness reports, Lulu misappropriated eight cases of paperclips from the company’s central storage area.

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Employers must be careful not to reach a “legal” conclusion when documenting investigations and/or employee misconduct. Doing so can “box” the employer into a corner.Example: “Based on eyewitness accounts,

documents, and witness interviews, the company has solid evidence that Charlie sexually harassed a female co-worker (Charlina) beginning on August 1, 2000, and through the present date. In fact, the harassment was so apparent that Charlie’s immediate supervisor was well aware of this situation from the beginning…”

AVOID REACHING A LEGAL CONCLUSION

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You need to sign that ****sales agent agreement as it is. If we do not get it by April 1st, you are not only done with Jones Manufacturing but we will hold all commissions and come after ones you have already made. We will also notify all your contacts to let them know you have been terminated due to gross insubordination.

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Say instead: It is a requirement of your job that you sign the agent agreement we presented you. If you do not sign, we will be unable to continue our relationship.

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AttitudeExample: “It seems as though you have a really,

really ‘bad’ attitude…”Acceptable alternative: Describe the behavior. Whenever I give you a work assignment, you roll

your eyes, put your thumb on your nose, wiggle your fingers and walk away. This behavior is not acceptable and illustrates to me that you are not interested in your job.”

DOCUMENTATION CHALLENGES

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Avoid interferences or assumptions. Example: “Based on the way you wander around

the worksite, you are either stupid or you are on crack.”

Acceptable alternative: “You are frequently away from your work area and, as a result, you are not meeting your production requirements.

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Avoid playing “armchair psychologist” Example: “Given your substandard

performance, I think you may be depressed. I would recommend that…..”

Acceptable alternative: I am concerned about your level of performance. You have repeatedly been late and when you are at work, often you seem disorganized and unfocused.”

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Avoid being a Smarty Pants: Example: In science, when two random

variables come together without the influence of any other stimuli and the outcome is the same, one can ascertain that there is a high validity of the action created being non-false.

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1. Make a thorough investigation, including interviewing ALL potential witnesses to the alleged incident.

2. Prepare a witness statement for the witness to sign or keep detailed notes of the interview.

3. Advise the person being interviewed of the purpose of the investigation. If the individual is not allegedly involved, give assurance that they are not subject to the investigation and your only interest is in finding out what facts they may know.

CONDUCTING AN INVESTIGATION: THE BASICS

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4. In interviewing any witnesses, develop the facts and not conclusions. (e.g., in a discipline case for insubordination, do not say: “The employee used profanity toward the supervisor.” Write out the words used no matter how offensive they may be.)

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5. In ALL cases, interview the alleged wrongdoer so that the employee’s version of the incident is obtained. This should be done in every case irrespective of how strong the facts supporting discipline may appear and even if it is doubtful the person’s statement will change anybody’s position.

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6. Be objective in the investigation. Do not approach it on the theory that you are attempting to build a case, rather, what you are doing is ascertaining facts so that a fair decision may be reached.

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An investigation conducted in good faithincludes:A trained neutral investigator.A response to every complaint.Always, always interview the wrongdoer and

allow a response. Fundamental issue of fairness.

Corroborate, if you can and if appropriate.Interview witnesses on both sides.

WHAT IS A “GOOD” INVESTIGATION?

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Follow-up and allow employees (especially the wrongdoer) an opportunity to clarify, respond to new allegations, or correct statements.Conclusion was reached in good faith and is

supported by evidence gathered during an investigation.In the circumstances where remedial action is

appropriate, the action taken is designed to prevent the behavior for occurring in the future.

WHAT IS A “GOOD” INVESTIGATION? (CONT.)

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CASE PROBLEMS

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Background: R.N.- Mary Smith employed for seven years. 55 years old. Performance evaluations-average.

The Medication Error: Medication error made by a different R.N. (not Mary Smith) on March 15, 2013. Overdose of lithium-the chart reflected the following: Hold all meds until consulting with Dr. X after results are in from 6 a.m. lith level.

THE CASE OF THE NEGLIGENT NURSE

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Whenever a medication error was made, the medication card was marked with a red tab to alert the staff to the fact that an error had been made. Report was made by a tape recorder and the report noted the medication error and that all meds were to be held. In addition, the charge nurse verbally called Smith’s attention to the error at the time of report when the shift was changing.

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Mary Smith administered all medications prescribed in the chart, including 900 milligrams of Lithobid.

Patient recovered but was placed at additional risk because of the lithium administered by Mary Smith.

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She was extremely busy that night and the unit was understaffed. Smith was the only nurse on duty in ITC and three patients who had attempted suicide required special observation.

Smith said she started to read the physician’s orders but had to do something else and missed the part of the entry referring to holding all meds. Smith also said she did not have the time to listen to the taped report.

RN SMITH’S EXPLANATION FOR WHY SHEGAVE THE ADDITIONAL DOSE:

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On 3/15/2012 Written warning to Smith. Patient had attempted suicide and was admitted to Intensive Treatment Center (ITC). Hospital policy provides: A patient may be placed on suicide

precautions by a physician or registered nurse. The nurse initiating suicide precautions will notify the patient’s physician.

THE SMITH’S PREVIOUS DISCIPLINERECORD

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Document observations of patient every fifteen minutes on open ended flow sheets in the medical record; document significant verbal and non-verbal communication.Smith failed to chart suicide checks although

claim was that they had been made.

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8/12/2012 Written Warning Hospital policy prohibited possession of mirrors or glass on ITC. Patient was allowed to use a small hand mirror that was kept at nursing station.

8/26/2012 Written Warning Anorectic patient must be weighed every morning in patient gown only. R.N. noted that patient’s underpants were baggy while being weighed and suspected a towel may have been stuffed in her pants but did not check it out.

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Smith claimed that she did not really believe patient had a towel in underpants but had quipped to a nurse on next shift patient had such baggy underpants that a towel could have been stuffed in them.

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The supervisor’s most recent evaluation of Smith.January 2013: During the last year, I have

questioned Smith’s judgment three times in writing. I feel Smith knows her job description but it is my expectation she should improve… I would like Smith to stop and think things through more carefully in order to assess situation. I would also like to see continued increase in attention to documentation.

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I feel Smith has difficulty sometimes adapting to emergencies or situations on the unit…In 1990, Smith received an award for not being sick the past year. Smith is on time and ready for work. Smith gets along with staff. Smith can seem abrupt at times because of high energy level. Smith is resourceful, and motivated. I would encourage Smith to check things out with other R.N.’s more and guidance from supervisor… Overall, I feel Smith is a willing and enthusiastic employee. I would see Smith working on the previously-mentioned areas (i.e., assessment and documentation.)

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What actions would you recommend the employer take with respect to Smith?

What would you do and why?What do you think happened to Smith?

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The Discharge of Drinking DanDan Drinker has been employed as an x-ray

technologist by Southland Regional Medical Center for a period of ten years. In 1985, Dan has been given a leave of absence and undergone treatment for alcoholism.

CASE PROBLEM #2

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Dan reported for work on the night shift at 11:00 p.m. on Christmas Eve, December 24, 1993. At that time, Supervisor Mary Magnificent thought she smelled alcohol on Drinker’s breath and thought his eyes appeared to be “tired and bleary looking.” When questioned as to whether he had been drinking, Dan replied that he had some wine for dinner, but that he was perfectly capable of working. Dan worked the shift.

THE DISCHARGE OF DRINKING DAN (CONT.)

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The incident was documented by Magnificent and submitted to Department Head Ann Arbitrary. Arbitrary and Director of Personnel, William Wimp, reviewed Drinker’s personnel file. The file reflected average performance through 1992 and the following disciplinary actions:

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1. Oral warning on January 4, 1989, for excessive absenteeism.

2. Written warning on August 15, 1992, for excessive absenteeism.

3. Written warning on June 10, 1993, for excessive absenteeism.

4. A one-day suspension issued on August 21, 1993, for excessive absenteeism and Drinker was told that if he was absent in the next 90 days, he would be fired.

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Arbitrary and Wimp agreed that an investigation should be conducted because the incident was serious. Wimp talked to two other employees who had worked the night shift on December 24 and they did not notice anything unusual in Drinker’s performance, although they thought he was acting a little strangely.

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Drinker was scheduled to meet with Arbitrary and Wimp on December 27 to discuss the Christmas Eve incident. Drinker called in sick for his scheduled shift on December 26 and failed to attend the meeting on December 27 as a result of a drinking bout.

On December 28, Drinker called Wimp and said he was entering treatment for alcoholism.

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The question of what action to take was considered by the hospital’s management team. Wimp reported that the hospital had no written policy on reporting to work under the influence but it was clearly understood that employees could not report for work in an unfit condition and that this was so basic that no written policy was needed.

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Arbitrary argued that Drinker should be terminated since it was common knowledge that Drinker was not a good employee, that he had attendance problems, and that this was the best time for the hospital to get rid of a poor employee.

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What action(s) do you recommend?

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QUESTIONS?

Thank you.

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