Discharge Employee

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					  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@wzplaborlaw.com
       TOP 10 REASONS WHY WE FAIL
         TO EFFECTIVELY ADDRESS
             EMPLOYEE ISSUES
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
               standard.



              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
                   under control.




                                WEBSTERS
       GOLDEN RULES OF
     EFFECTIVE DISCIPLINE

• RULE OF IMMEDIACY


• RULE OF CONSISTENCY


• RULE OF IMPERSONALITY


• RULE OF POSITIVISM
 STYLES OF SUPERVISION

 BRICK WALL



 JELLYFISH



 BACKBONE
GENERAL TIPS TO USE FOR ADDRESSING
    DIFFICULT 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.
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.
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.
           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 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
               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.
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”
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.

				
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