IPMA – HR CONFERENCE

EFFECTIVEDISCIPLINE & DISCHARGE

Portland, OregonMay 5, 2006

Presented by:

Kathy A. PeckWilliams, Zografos & Peck

PO Box 547, Lake Oswego, OR 97034kpeck@wzplaborlaw.com

IPMA – HR CONFERENCE

EFFECTIVEDISCIPLINE & DISCHARGE

Portland, OregonMay 5, 2006

Presented by:

Kathy A. PeckWilliams, Zografos & Peck

PO Box 547, Lake Oswego, OR 97034kpeck@wzplaborlaw.com

TOP TOP 10 10 REASONS WHY WE FAIL REASONS WHY WE FAIL TO EFFECTIVELY ADDRESS TO EFFECTIVELY ADDRESS

EMPLOYEE ISSUESEMPLOYEE ISSUES

1. The replacement could be worse2. It will go away3. It won’t work anyway4. We might be sued5. Upper management won’t support me6. I’m too tired and overloaded7. I may not do it right8. It will be a lot of work 9. Hate conflict10. It’s unpleasant

1. The replacement could be worse2. It will go away3. It won’t work anyway4. We might be sued5. Upper management won’t support me6. I’m too tired and overloaded7. I may not do it right8. It will be a lot of work 9. Hate conflict10. It’s unpleasant

CONSEQUENCES OF FAILURE TO CONSEQUENCES OF FAILURE TO ACT: THE FISHBOWL EFFECTACT: THE FISHBOWL EFFECT

Small percentage of employees

with a similar lack of

commitment conform to lower

standard.

Other employees continue

performing at high standard.

The gap leads to resentment and

loss of respect for management.

Small percentage of employees

with a similar lack of

commitment conform to lower

standard.

Other employees continue

performing at high standard.

The gap leads to resentment and

loss of respect for management.

WHY DISCIPLINE EMPLOYEES?WHY DISCIPLINE EMPLOYEES?WHY DISCIPLINE EMPLOYEES?WHY DISCIPLINE EMPLOYEES?

dis´ci-pline (n) 1. training to act in accordance with

rules. 2. a regiment that develops or

improves a skill. 3. to train by

instruction and exercise. 4. to bring

under control.

WEBSTERS

dis´ci-pline (n) 1. training to act in accordance with

rules. 2. a regiment that develops or

improves a skill. 3. to train by

instruction and exercise. 4. to bring

under control.

WEBSTERS

GOLDEN RULES GOLDEN RULES OFOF EFFECTIVE DISCIPLINEEFFECTIVE DISCIPLINE

GOLDEN RULES GOLDEN RULES OFOF EFFECTIVE DISCIPLINEEFFECTIVE DISCIPLINE

• RULE OF IMMEDIACY

• RULE OF CONSISTENCY

• RULE OF IMPERSONALITY

• RULE OF POSITIVISM

• RULE OF IMMEDIACY

• RULE OF CONSISTENCY

• RULE OF IMPERSONALITY

• RULE OF POSITIVISM

STYLES OF SUPERVISIONSTYLES OF SUPERVISIONSTYLES OF SUPERVISIONSTYLES OF SUPERVISION

BRICK WALL

JELLYFISH

BACKBONE

BRICK WALL

JELLYFISH

BACKBONE

GENERAL TIPS TO USE FOR ADDRESSING GENERAL TIPS TO USE FOR ADDRESSING DIFFICULT EMPLOYEE ISSUESDIFFICULT EMPLOYEE ISSUES

Avoid “over-thinking.”

Don’t back pedal.

Draft disciplinary notices to avoid “roller coasting.”

Distinguish between causation and lack of mitigation when issuing discharge and suspension notices.

• Clearly identify the cause for discharge.

• Separately set forth any factors that mitigate against a lesser form of discipline.

Incorporate “must develop and maintain cooperative and respectful interpersonal relationships with co-workers, supervisors” into next revision of work rules and job descriptions as an independent job requirement.

Avoid “over-thinking.”

Don’t back pedal.

Draft disciplinary notices to avoid “roller coasting.”

Distinguish between causation and lack of mitigation when issuing discharge and suspension notices.

• Clearly identify the cause for discharge.

• Separately set forth any factors that mitigate against a lesser form of discipline.

Incorporate “must develop and maintain cooperative and respectful interpersonal relationships with co-workers, supervisors” into next revision of work rules and job descriptions as an independent job requirement.

For “inherited” bad performers, give the employee sufficient time under new supervision to form independent conclusions.

• Utilize “slate cleaning” approach to raise the bar.

• Do not pretend your standards are the same.

• Instead, emphasize:

• That you hold all your subordinates to the same standard; and

• That you believe your standards better conform with the general standards of the department/work unit.

For “inherited” bad performers, give the employee sufficient time under new supervision to form independent conclusions.

• Utilize “slate cleaning” approach to raise the bar.

• Do not pretend your standards are the same.

• Instead, emphasize:

• That you hold all your subordinates to the same standard; and

• That you believe your standards better conform with the general standards of the department/work unit.

Don’t say layoff when you mean discharge.

• When appropriate, permit an employee to resign in lieu of discharge.

• Address and dissolve unemployment concerns.

Recognize “due process” obligations.

Comply with “Weingarten” obligations.

Comply with “Reverse Garrity” notice obligations.

Do not discipline or discharge employees for exercising free speech

or write warnings in a manner that suggests so.

Don’t say layoff when you mean discharge.

• When appropriate, permit an employee to resign in lieu of discharge.

• Address and dissolve unemployment concerns.

Recognize “due process” obligations.

Comply with “Weingarten” obligations.

Comply with “Reverse Garrity” notice obligations.

Do not discipline or discharge employees for exercising free speech

or write warnings in a manner that suggests so.

Do not discipline or discharge employees for FMLA or other protected absences or write notices in a manner that suggests so.

• Ask the questions necessary to determine what is legally countable.

• Carefully exclude protected absences.

• Document this exclusion.

Never criticize an employee’s use of legal rights.

But, don’t be deterred from holding an employee who exercises legal rights accountable to normal standards.

Do not discipline or discharge employees for FMLA or other protected absences or write notices in a manner that suggests so.

• Ask the questions necessary to determine what is legally countable.

• Carefully exclude protected absences.

• Document this exclusion.

Never criticize an employee’s use of legal rights.

But, don’t be deterred from holding an employee who exercises legal rights accountable to normal standards.

Any time a claim of harassment, discrimination or violation of legal rights is voiced, go “on record” as being committed to compliance

with the law.

• Document that commitment in notes, emails or memos, as

appropriate.

• Separate the performance issue from the claim of harassment, etc. Investigate and address.

Any time a claim of harassment, discrimination or violation of legal rights is voiced, go “on record” as being committed to compliance

with the law.

• Document that commitment in notes, emails or memos, as

appropriate.

• Separate the performance issue from the claim of harassment, etc. Investigate and address.

DUE PROCESSDUE PROCESS

NO CITIZEN SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS

OF LAW

PROPERTY = An interest protected by contract, law or regulation.

(Example: “just cause” employment)

LIBERTY = An employee’s liberty to secure future employment

(arises where the reason for an employee’stermination involves moral turpitude and couldtherefore jeopardize their ability to secure future employment) - Even when the employee is probationary.

NO CITIZEN SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS

OF LAW

PROPERTY = An interest protected by contract, law or regulation.

(Example: “just cause” employment)

LIBERTY = An employee’s liberty to secure future employment

(arises where the reason for an employee’stermination involves moral turpitude and couldtherefore jeopardize their ability to secure future employment) - Even when the employee is probationary.

Notice of Charges Against - Must be sufficiently clear to allow the employee a

meaningful opportunity to refute.

Notice of Sanction Being Considered

Opportunity to Refute - Need not be full evidentiary hearing.

Notice of Charges Against - Must be sufficiently clear to allow the employee a

meaningful opportunity to refute.

Notice of Sanction Being Considered

Opportunity to Refute - Need not be full evidentiary hearing.

CONSIDER:A public sector employer’s right to discharge or take other adverse action against an employee is governed by the following:

• Right of Free Speech is not Absolute

• Courts Must Utilize a Two Part Test:

1st – Does the speech relate to a matter of public concern?

2nd – If “no,” (e.g. speech related to a purely private concern) there is no free speech violation.

If “yes,” does the employer’s interest in controlling the work environment outweigh the employee’s free speech interest? (The Pickering balancing test)

The closer the speech relates to matters of public concern, the more compelling the employer’s interest must be. Lead Oregon case: Shockey v. City of Portland, 143 LRRM 2594 (1992)

CONSIDER:A public sector employer’s right to discharge or take other adverse action against an employee is governed by the following:

• Right of Free Speech is not Absolute

• Courts Must Utilize a Two Part Test:

1st – Does the speech relate to a matter of public concern?

2nd – If “no,” (e.g. speech related to a purely private concern) there is no free speech violation.

If “yes,” does the employer’s interest in controlling the work environment outweigh the employee’s free speech interest? (The Pickering balancing test)

The closer the speech relates to matters of public concern, the more compelling the employer’s interest must be. Lead Oregon case: Shockey v. City of Portland, 143 LRRM 2594 (1992)

THE “GARRITY RULE”THE “GARRITY RULE”

Public employers who wish to compel an employee to answer

questions that may incriminate them in employment

investigations (including internal affairs investigations) must

provide “Reverse Garrity” notices informing

the employee that:

Their answers will not be used in a subsequent criminal proceeding.

Failure to answer questions when ordered to do so may be used as a basis for an insubordination charge.

Public employers who wish to compel an employee to answer

questions that may incriminate them in employment

investigations (including internal affairs investigations) must

provide “Reverse Garrity” notices informing

the employee that:

Their answers will not be used in a subsequent criminal proceeding.

Failure to answer questions when ordered to do so may be used as a basis for an insubordination charge.