Mastering Progressive Discipline and Structuring Terminations

Mastering Progressive Discipline and Structuring

Terminations

[email protected]

www.PaulFalconeHR.com 1

Contents

Fundamental Elements of Workplace Due Process

What is Progressive Discipline?

Number of Steps

Classifying Infractions


Contents (cont.)

Incident Description Dos and Don’ts

Measurable and Tangible Improvement Goals

Training and Special Direction to be Provided

Documented Consequences “with Teeth”


Contents (cont.)

Watch What You Write: Avoid “Codifying the Damage”

Avoid Documenting “State of Mind Offenses”

Final Tips


Fundamental Elements of Workplace Due Process

Rule 1: The employee needs to know what the problem is

Rule 2: The employee needs to know what she needs to do in order to fix the problem (a measurable standard must be known in advance)


Fundamentals (continued)

Rule 3: The employee needs to have a reasonable time period in which to fix the problem

Rule 4: The employee needs to understand the consequences of inaction


To meet these four criteria:

You and your company have to be consistent in the application of your own rules. Therefore, look to your past practices. [Practice trumps policy!]

The discipline must be appropriate for the offense. Beware of over - emphasizing de minimis infractions.


Fundamentals (continued)

Consider prior service, overall performance, and prior performance appraisal and disciplinary records so that you’re not administering discipline in a vacuum.

Ensure that you have a “clean final incident” before moving forward with termination.


What is Progressive Discipline?

A series of one or more formal (documented) notices that an employee’s performance and/or conduct doesn’t meet standards

A progressive system of notification where each step contains some added element to impress upon the employee the growing sense of urgency


Number of StepsFollow the verbal > written > final written

warning paradigm unless starting with anything less than a final written warning could make you, as an employer, appear irresponsible.

Accord more due to process to longer-term workers (via paid decision-making leaves or unpaid suspensions).


Classifying Infractions

A repeated violation of the same rule or the same type of rule is key to progressing through the steps of progressive discipline.

Remember to view behavior in terms of overall responsibility rather than as isolated behavioral acts.


Two Key CategoriesPerformance Transgressions (including

policy and procedure violations and attendance / tardiness) -- Follow all regular steps of disciplinary process.

Behavior/Conduct Infractions -- Move to immediate termination or a final written warning for a first offense, if necessary.


I. Incident Description Do’s and Don’ts

Rule 1: Employ the traditional who - what- where - when - why paradigm when drafting narratives

Rule 2: Use your senses when describing events, and paint pictures with words


Incident Descriptions (cont.)

Rule 3: Document the negative organizational impact that resulted from the employee’s actions

“I found inconsistencies throughout your calculations and had to correct them myself before they could be processed. As a result, . . .



I had to work until 10:00 PM last night

We’ll have to hire a temp

We’ll need to push back the go-live date.”

Special Note: Don’t forget to attach the evidence (i.e., documented examples of the problematic work product, if available)!



Rule 4: Whenever possible, include the employee’s response in the warning to document that you listened to the individual’s side of the story before taking disciplinary action.

“When I asked you how this occurred, you stated. . .”


II. Measurable and Tangible Improvement Goals

State your expectations clearly:

“I expect you to complete your recruitment statistics by the fifth of the month and tell me in advance if you will be unable to collect the data from HRIS to meet this goal.”


Measurable Goals (cont.)

“You are expected to meet our organization’s guidelines regarding attendance and punctuality for the remainder of your introductory period and thereafter.”

“I expect you to always treat your coworkers with respect and to foster an inclusive work environment.”


III. Training and Special Direction to be Provided

Whenever possible, address a problem with positive tools and encouragement in order to “meet the employee half way.”

Discipline should always be delivered hand-in-hand with training and other “affirmative” employer efforts.


Training (continued)

“I will meet with you in your office every Monday for the next four weeks to . . .”

“In an effort to sensitize you about how your behavior might impact others, please investigate one-day workshops on dealing with interpersonal conflict in the workplace, which you may attend on company time and at company expense.”


Training (continued)We supported you through your FMLA leave of absence, which initially

exhausted its 480-hour maximum and expired on July 6th, 2013. You immediately requested an additional two weeks off for a personal leave of absence from August 24th – September 6th due to an illness in your family, which was likewise granted. Then as an ADA accommodation for modified duty, you were permitted to work in a restricted capacity from July 21st – December 14th. You ultimately received a full return-to-work release from your healthcare provider on Monday, December 14th. However, on Wednesday, December 16th, you stated that you slipped and fell and initiated a workers’ comp claim, which the company fully supported. (Note that we have since received medical documentation releasing you to return to full duty.) In addition, we agreed for you to work in an office location closer to your home one day per week to accommodate your longer commute.

You are certainly entitled to these leaves, but the timing of the occurrences, your taking time off “at whim,” your failure to apprise management of your whereabouts or report back to duty as instructed, and your disregard for policy and protocol have now placed your position in immediate jeopardy of being lost.


IV. Documented Consequences “with Teeth”

Catch-All: “Failure to demonstrate immediate and sustained improvement may result in further disciplinary action up to and including dismissal.”


Consequences (continued)Consequences with no time limits:

“If you ever again engage in conduct with a supervisor, coworker, or customer that could be considered hostile or offensive, or threatening or overly challenging, you may be immediately dismissed.”


A Short Illustration

August 2013: Verbal WarningOctober 2013: Written WarningDecember 2013: Final Written Warning February 2014: Performance Review “meets

expectations” April 2014: Department requests termination Question: Can you terminate safely?


Paul Falcone

ANSWER: The paper record arguably restricts your ability to terminate for performance at this point because the annual review is the last document on file and appears to trump the previous final written warning. A revised, additional "final written warning" may need to be issued confirming that the annual performance review score showing that the employee met expectations for the performance year was issued in error. Language could include: "This is your last chance" and "Your position is now in immediately jeopardy of being lost."

Watch What You Write. . .

• Avoid using the words “always” and “never” in both your verbal and written communications.

Avoid documenting “state of mind” offenses: do not use words such as “willfully, maliciously, purposely, deliberately, or intentionally” (mental element qualifiers)

Do not “codify the damage.” Remember, these documents are all discoverable (e.g., “Sexual Harassment” is considered a legal conclusion).


Final Tips (cont.)Don’t ever rush to judgment at the finish line:

You’re better of placing an individual on a paid, investigatory leave when you need additional time to reach a conclusion.

Don’t manage by fear of a lawsuit: Instead, make sure that if one comes your way, you’re getting sued on your terms, not theirs!

Successful verbal and written interventions allow you to handle matters respectfully, responsibly, and in a timely manner, which are the key tenets of workplace due process and fairness.


Q&A: Questions and Actions

Paul [email protected]


Recruiting & HR

Mastering Progressive Discipline and Structuring Terminations