IPMA – HR CONFERENCE
DISCIPLINE & DISCHARGE
May 5, 2006
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
TOP 10 REASONS WHY WE FAIL
TO EFFECTIVELY ADDRESS
1. The replacement could be worse
2. It will go away
3. It won’t work anyway
4. We might be sued
5. Upper management won’t support me
6. I’m too tired and overloaded
7. I may not do it right
8. It will be a lot of work
9. Hate conflict
10. It’s unpleasant
CONSEQUENCES OF FAILURE TO
ACT: THE FISHBOWL EFFECT
Small percentage of employees
with a similar lack of
commitment conform to lower
Other employees continue
performing at high standard.
The gap leads to resentment and
loss of respect for management.
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
GOLDEN RULES OF
• RULE OF IMMEDIACY
• RULE OF CONSISTENCY
• RULE OF IMPERSONALITY
• RULE OF POSITIVISM
STYLES OF SUPERVISION
GENERAL TIPS TO USE FOR ADDRESSING
DIFFICULT EMPLOYEE ISSUES
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
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
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;
• 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
• 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
• 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
• Separate the performance issue from the claim of harassment,
etc. Investigate and address.
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’s
termination involves moral turpitude and could
therefore jeopardize their ability to secure future
employment) - Even when the employee is
Notice of Charges Against - Must be sufficiently clear to
allow the employee a
meaningful opportunity to
Notice of Sanction Being Considered
Opportunity to Refute - Need not be full evidentiary
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”
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
Failure to answer questions when ordered to do so may
be used as a basis for an insubordination charge.