IPMA HR CONFERENCE

1

• IPMA HR CONFERENCE
• EFFECTIVE
• DISCIPLINE DISCHARGE
• Portland, Oregon
• May 5, 2006
• Presented by
• Kathy A. Peck
• Williams, Zografos Peck
• PO Box 547, Lake Oswego, OR 97034
• kpeck_at_wzplaborlaw.com

2
TOP 10 REASONS WHY WE FAIL TO EFFECTIVELY
ADDRESS EMPLOYEE ISSUES

• The replacement could be worse
• It will go away
• 3. It wont work anyway
• We might be sued
• Upper management wont support me
• 6. Im too tired and overloaded
• 7. I may not do it right
• 8. It will be a lot of work
• 9. Hate conflict
• 10. Its unpleasant

3
CONSEQUENCES OF FAILURE TO ACT 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.

4
WHY DISCIPLINE EMPLOYEES?

• disci-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

5
GOLDEN RULES OF EFFECTIVE DISCIPLINE
RULE OF IMMEDIACY RULE OF
CONSISTENCY RULE OF IMPERSONALITY
RULE OF POSITIVISM
6
STYLES OF SUPERVISION

• BRICK WALL
• JELLYFISH
• BACKBONE

7
GENERAL TIPS TO USE FOR ADDRESSING DIFFICULT
EMPLOYEE ISSUES

• Avoid over-thinking.
• Dont 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.

8

• 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.

9

• Dont 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.

10

• 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 employees use of legal
  rights.
• But, dont be deterred from holding an employee
  who exercises legal rights accountable to normal
  standards.

11

• 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.

12
DUE 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 employees liberty to secure
  future employment
• (arises where the reason for an employees
• termination involves moral turpitude and
  could
• therefore jeopardize their ability to secure
  future
• employment) - Even when the employee is
• probationary.

13

• 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.

14

• CONSIDER
• A public sector employers 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 employers interest
  in controlling the work
• environment outweigh the
  employees free speech interest?
• (The Pickering balancing
  test)
• The closer the speech relates to matters of
  public concern, the more compelling the
• employers interest must be. Lead Oregon case
  Shockey v. City of Portland, 143

15
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.