Mastering Progressive Discipline and Structuring Terminations

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• Mastering Progressive Discipline and Structuring
  Terminations
• www.PaulFalconeHR.com
• Paul_at_PaulFalconeHR.com

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Contents

• Fundamental Elements of Workplace Due Process
• What is Progressive Discipline?
• Number of Steps
• Classifying Infractions

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Contents (cont.)

• Incident Description Dos and Donts
• Measurable and Tangible Improvement Goals
• Training and Special Direction to be Provided
• Documented Consequences with Teeth

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Contents (cont.)

• Watch What You Write Avoid Codifying the
  Damage
• Avoid Documenting State of Mind Offenses
• Final Tips

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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)

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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

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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.

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Fundamentals (continued)

• Consider prior service, overall performance, and
  prior performance appraisal and disciplinary
  records so that youre not administering
  discipline in a vacuum.
• Ensure that you have a clean final incident
  before moving forward with termination.

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What is Progressive Discipline?

• A series of one or more formal (documented)
  notices that an employees performance and/or
  conduct doesnt meet standards
• A progressive system of notification where each
  step contains some added element to impress upon
  the employee the growing sense of urgency

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Number of Steps

• Follow the verbal gt written gt 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).

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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.

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Two Key Categories

• Performance 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.

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I. Incident Description Dos and Donts

• 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

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Incident Descriptions (cont.)

• Rule 3 Document the negative organizational
  impact that resulted from the employees actions
• I found inconsistencies throughout your
  calculations and had to correct them myself
  before they could be processed. As a result, . .
  .

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Incident Descriptions (cont.)

• I had to work until 1000 PM last night
• Well have to hire a temp
• Well need to push back the go-live date.
• Special Note Dont forget to attach the evidence
  (i.e., documented examples of the problematic
  work product, if available)!

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Incident Descriptions (cont.)

• Rule 4 Whenever possible, include the employees
  response in the warning to document that you
  listened to the individuals side of the story
  before taking disciplinary action.
• When I asked you how this occurred, you stated.
  . .

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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.

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Measurable Goals (cont.)

• You are expected to meet our organizations
  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.

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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.

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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.

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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.

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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.

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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.

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A Short Illustration

• August 2013 Verbal Warning
• October 2013 Written Warning
• December 2013 Final Written Warning
• February 2014 Performance Review meets
  expectations
• April 2014 Department requests termination
• Question Can you terminate safely?

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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).

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Final Tips (cont.)

• Dont ever rush to judgment at the finish line
  Youre better of placing an individual on a paid,
  investigatory leave when you need additional time
  to reach a conclusion.
• Dont manage by fear of a lawsuit Instead, make
  sure that if one comes your way, youre 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.

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QA Questions and Actions

• Paul Falcone
• www.PaulFalconeHR.com
• Paul_at_PaulFalconeHR.com