IPMA – HR CONFERENCE
Portland, Oregon
May 5, 2006
EFFECTIVE DISCIPLINE & DISCHARGE
I.
INTRODUCTION
Discipline must be maintained in any culture, including the culture of any private
sector organization. An employer has a legitimate right, if not an obligation, to
expect employees to meet acceptable standards of performance and behavior,
including maintaining satisfactory attendance, performing work in a careful,
accurate and efficient manner, following job instructions, following safety rules
and practices, and accepting job assignments or instructions from supervisors.
As in most cultures, most individuals conform to the expected standards of
performance and behavior. However, when an employer's expectations are not
satisfied, the need for a disciplinary process arises. When this occurs, all too
frequently, employers typically impose improper discipline, delayed discipline, or
no discipline at all. Ineffective or improper discipline of employees contributes to
the filing of costly litigation, including wrongful termination and EEO suits. It
also results in decreased productivity and poor employee morale and the increased
filing of grievances.
On the other hand, effective or proper discipline usually has the following
positive impact:

Increased supervisory self-confidence;

Earlier employee problem resolution;

Increased productivity and employee morale;

Reduced turnover in absenteeism due to sickness, disability, etc.;

Greater respect for management;

Improved labor relations climate; and
In summary, employees generally recognize that through the employer’s approach
to discipline, an employer displays its true attitude about employees and
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Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
productivity. Consequently, the employer's disciplinary programs create either
trust or mistrust and produce either positive or negative results in the arena of
human relations.
A.
WHY DISCIPLINE EMPLOYEES?
There are two basic reasons why an employer should discipline
employees:
1.
Reinforce Standards
To reinforce standards of conduct and to help an individual
become a better employee by reminding the employee of the need
to meet acceptable standards of performance and behavior.
This concept is based on the premise that employees are and must
be responsible for their own behavior. Furthermore, the level of
expectation of standards that is communicated to the employees
will usually determine the standard of employee performance and
behavior.
2.
Deter Improper Conduct
To deter employees from engaging in improper conduct or violation of the
rules or regulations in the future. Conversely, the imposition of discipline
on those employees who violate the rules or regulations will serve to
reward those who obey and adhere to the rules and regulations; and
According to the more traditional approach, discipline is used as a means
to punish employees for violation of rules and regulations. Do not
subscribe to this viewpoint as being a legitimate reason for discipline.
Although individual employees may view discipline as punishment,
punishment is not our goal. The goal is to change an employee's deficient
behavior to effectuate a positive change. Consequently, supervisors
should focus on this goal.
B.
SELF-DISCIPLINE
Obviously, the best discipline is self-discipline. The normal human
tendency is to do one's share and to follow rules. Once employees know
what is expected of them, they will generally regulate their own behavior
so that their performance is productive and will conform to standards.
Self-discipline is based on the concept that employees prefer success to
failure. Self-control and self-discipline are always preferable to control or
2
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
discipline imposed by an outside force. However, on occasion it becomes
necessary for a supervisor to influence the behavior of employees through
the use of discipline.
C.
RELUCTANCE TO ADMINISTER DISCIPLINE
Applying discipline often times places the supervisor in a dilemma. How
can supervisors expect employees to continue to regard them as a source
of assistance, when discipline by nature is painful? Can supervisors
impose discipline without generating resentment? Yes -- through what is
called the "red-hot stove rule." This rule draws an analogy between
touching a hot stove and undergoing discipline. You learn your lesson
quickly because:

The burn is immediate. There is no question of cause and
effect.

The employee had warning. If the stove was red-hot, the
employee knew what would happen if (s)he touched it.

The discipline is consistent and impersonal. Everyone who
touches the stove is burned.

A person is burned not because of who (s)he is, but because
(s)he touched the stove.
In short, the discipline is directed against the act or performance,
not against the employee.
D.
THE “GOLDEN RULES” OF DISCIPLINE
Supervisors who are perceived by those they supervise as being unfair are
ineffective in motivating employees to make necessary changes in their
behavior. If an employee does not trust his/her supervisor to be fair, that
employee will see little or no purpose in correcting their behavior. In
these situations employees tend to think “Why should I bother? I still
have no assurance that I will be treated fairly even if I improve my
attendance, work harder, etc.”
In order to be effective, a supervisor must be respected by his/her
subordinates. In order to be respected, a supervisor must be fair. This
means exercising good judgment in deciding when and how to discipline
employees. It also means treating all employees, regardless of the nature
of their work-related problems or deficiencies, like intelligent adults. In
other words, treat employees like you would want to be treated. Do not
3
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
attack or criticize the individual. Focus on the conduct to be corrected.
Choose your words carefully. Supervisors should never belittle or talk
down to an employee.
To assist supervisors in developing and maintaining a fair and respectful
approach to discipline, follow these "Golden Rules:"
1.
Rule of Immediacy
The supervisor should begin the disciplinary process as soon as
possible after a violation of the rule is noticed.
The more quickly the discipline follows the violation of the
standard, the more likely it is that the offending employee will
associate the discipline with the offense rather than the supervisor
imposing the discipline. An immediate reaction also minimizes an
employee's opportunity to insulate himself/herself from discipline
by engaging in protected activity before discipline is
communicated. For instance, some employees will sense that
discipline is forthcoming and will report a workers' compensation
injury, complain of sexual harassment, etc. When this happens it is
more difficult to discipline because questions arise regarding the
motive for the discipline.
2.
Rule of Consistency
Should two employees violate the same standard, and one
employee is disciplined more severely than the other, naturally
there will be cries of favoritism. Consequently, one of the quickest
ways for supervisors to lose employees' respect and to lower
employee morale is to impose discipline in an inconsistent way.
Management should always keep in mind the educational function
of corrective discipline. Consistent discipline helps to set limits: It
lets employees know what they can and cannot do. Inconsistent
discipline inevitably leads to confusion and uncertainty. When
some rules are permitted to go unenforced, employees may either
(1) decide to ignore all rules, or (2) become confused about what is
really required of them.
It is very important, however, that supervisors understand that
employees cannot realistically be treated like “widgets.” It is rare
when two disciplinary problems are exactly alike. For instance, a
supervisor’s reaction to a newly hired employee’s failure to report
for work in a timely fashion and the supervisor’s reaction to the
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Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
failure of an ordinarily dependable employee to report for work
may call for different degrees of discipline. Distinctions might
also be justified if one employee’s failure to call in is attributable
to carelessness or laziness, and the other employee's reason is
attributable to bona fide family emergency or other legitimate
reasons.
However, exceptions to the consistent application of discipline
should be limited to extraordinary situations. The exception
should not, in other words, “swallow the rule.” Also, when there is
a well-deserved departure from standards, the employee should be
told that (s)he is being given extra consideration and that his/her
conduct would normally result in a more severe disciplinary action.
The action taken should, in turn, be documented as “the
exception.” This will preserve the record in the event a less
deserving employee commits the same or similar infraction and
receives harsher treatment. It will also preserve the validity of the
rule.
The bottom line is that when an employee commits a disciplinary
violation or falls below the employer's performance standards, that
problem should always be addressed, regardless of how valued and
long term the employee may be. The degree of discipline taken
may, however, vary in unusual situations. This approach
represents a workable compromise. It recognizes the need for
consistency in addressing similar employee problems, while at the
same time allowing for the fact that employees are not widgets.
3.
Rule of Impersonality
Good supervisors encourage subordinates to express themselves
freely and try to play down differences in employment status
without becoming so closely aligned with those they supervise that
they become ineffective in enforcing Company standards. Such
supervisors build up the feeling that they and the employee are on
the same team. Does corrective discipline seriously endanger this
relationship? It may. In fact, the disciplined employee might
easily say, “That so-and-so. I thought we were friends.” It is not
easy to impose discipline without causing the disciplined employee
to feel resentful. But the supervisor can minimize the danger to the
relationship by imposing discipline as fairly and impersonally as
possible.
Discipline is most effective and has the least negative effect on
individuals if the individual feels that his/her behavior at this
5
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
particular moment is the only thing being criticized, and not his/her
total personality.
4.
Rule of Positivism
Supervisors should always keep in mind that the proper function of
discipline is to rehabilitate, not punish an employee.
In short, effective discipline requires a clear communication
that the responsibility for the correction rests with the
employee, not the supervisor. When this message is coupled
with a sincere expression of confidence in the employee's
ability to meet this challenge, it is more likely to produce
positive change. Supervisors who use this approach revert to the
role of a “coach” after advising the employee of the expectations
that will be required for future conduct. The vast majority of
employees react better to this approach than the approach of a
supervisor who is acting in the role of an “enforcer.” The reason
for this is that the coach allows an employee to return to work with
the expectation that (s)he can succeed in correcting his/her
deficiencies. Enforcers do not typically convey this vote of
confidence. Consequently, it is more likely that the employee will
return to work with the feeling that the supervisor does not believe
improvement can be made.
E.
THE POWER OF DOCUMENTATION
Virtually every study on jury behavior confirms the conclusion that jurors
absorb more from testimony in the form of written exhibits than oral
testimony.
Employers who face employees or ex-employees in
employment litigation have a picture to paint to the jury, a labor
arbitration or other trier of fact. This “picture” hopefully portrays
employment action that is firm, fair and motivated by legitimate, nondiscriminatory consideration. Documentation is invaluable in helping an
employer paint this picture, particularly in protected activity cases where
timing can be an employers’ “worst enemy.”
Documentation also serves the secondary purpose of calming the nerves of
prospective supervisory or management witnesses by providing them with
tools to refresh their memories about incidents and meetings that occurred
and sometimes years before a trial or arbitration.
There are two basic types of documentation that are critically important in
the employment arena:
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Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
1.
Documentation establishing progressive discipline for
non-serious violations.
This type of documentation is appropriate for performance
problems, attendance concerns and other conduct that is not
sufficiently serious to justify the suspension or discharge. The
goal of such documentation is to show that an employee was
notified of his/her substandard behavior and was given a
reasonable opportunity to correct that behavior. This type of
documentation generally consists of well-drafted disciplinary
notices
which,
ideally,
incorporate
the
employees’
acknowledgment of the problem and commitment to improve.
2.
Documentation establishing an objective investigation
and proof of “guilt” for serious violations.
This type of documentation is appropriate when an employee’s
behavior raises concerns that he/she may have engaged in conduct
justifying suspension or discharge.
The goal of such
documentation is to show that an employee’s conduct was
objectively and fairly investigated and the employee was given a
meaningful opportunity to tell his/her “side of the story.”
F.
DISCIPLINARY INTERVIEWS
Employees should NEVER be disciplined or discharged before they have
been given an opportunity to explain their side of the story. This practice
is not only fair and logical because of due process obligations, but is also
important because employees who do not “go on the record” early in the
process have the unlimited opportunity to add to their explanations to
make their conduct more believable. Similarly, employees who fear
discipline or discharge may attempt to insulate themselves from such
action by adding claims of protected activity. Again, an employee may
claim that the real reason her performance was inadequate is because her
supervisor was sexually harassing her or the real reason his attendance
was poor is because he hurt his back lifting something on the job the
previous week. Although the same assertions can be made regardless of
whether the employee was given a chance to tell his/her story before
disciplinary action was taken, it is more difficult for the employee to avoid
the inference that these claims were “made up” after the fact if (s)he was
given a chance to speak and did not. As a general rule, the earlier in the
process that the employee tells his/her side of the story, the more truthful
the story is told.
7
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
In its opening stages, the disciplinary interview is not much different from
most other forms of interviews. A supervisor should first, state the
problem as (s)he sees it, then encourage the employee to state his/her point
of view. Let the employee tell his/her story. Give the employee every
chance to explain. Try to draw the employee out and try to discover the
real story. Do not ask for excuses, but focus on the need to meet
acceptable standards. Throughout the interview, present the view that the
particular standard being violated (whether a performance standard or a
disciplinary rule) is a reasonable standard and one which the employee is
capable of meeting and following in the future.
1.
Tips for conducting an investigation.
Given the wide variety of workplace issues that may lead to an
investigation, it is difficult to provide a format for questioning that
will apply in all situations. However, the following general
guidelines may be of assistance to you in conducting meaningful
and effective inquiries and investigations:

Before you begin an inquiry, develop a general “game
plan.”
Although this plan may change as new information becomes
available, it is important to approach the investigation with
reasoned objectives.
Part of this procedure involves
determining the sequence of witnesses to be interviewed and
conducting back-to-back interviews, as appropriate to avoid
inappropriate sharing of fictionalized versions of the facts.

Whenever possible, interviews should be conducted
with two management or supervisory employees
present.
Departures from this rule may be appropriate when personality
factors indicate the interviewee will be more open with only
employer representative present or other workplace
practicalities prohibit the presence of two management or
supervisory employees.
8

Tailor the scope of your investigation to legitimate
work-related matters.

Utilize leaves pending investigation as a means to enable
adequate investigation of conduct that may lead to
discharge.
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
Never discharge an employee when you are angry or do not
have a complete and comfortable understanding of the facts.
Comply with due process obligations.

Do not rely on rumors or second-hand information to
discipline or discharge an employee.

Never discipline or discharge an employee before they
have been given an opportunity to explain their side of
the story.
This practice is not only fair and logical, but is important
because employees who do not “go on the record” early in the
process have the unlimited opportunity to add to their
explanations to make their conduct more believable, even when
it is not truthful.
2.
Effective Interviewing Techniques

When interviewing witnesses, particularly witnesses in
harassment
or
other
employee
misconduct
investigations, carefully document their responses.
Control the pace of the interview as necessary to take notes of
the information being provided.

Learn to separate first-hand information hearsay and
rumor.
Think of “hearsay” as second-hand information (this is
information coming from someone who did not directly see or
overhear what they are reporting, but instead, heard it from
someone else.) Although hearsay and rumor may lead to other
individuals to be interviewed, base your employment decisions
on only first-hand credible information. Get in the habit of
asking: “Were you there?” “Did you see that?” “Did you hear
that?” Sometimes people share information that makes it
sound like they have first-hand information, when they are only
repeating what they heard from someone else.

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Develop a “storybook” questioning style, e.g. “What
happened?” as opposed to a questioning style that
allows the person being interviewed to provide “yes” or
“no” answers.
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
Gaps in the interviewee’s story may be followed up with
specific questions about who, what, when, where, witnesses,
etc.

Recognize the value of silence.
If a witness is struggling to answer a question, don’t rescue
him/her, wait for a response. If necessary, repeat the question.

Advise all of those interviewed not to discuss the subject
matter of the interview with others pending the
investigation.

If for any reason you feel the individual being
interviewed is not being honest, re-ask selected
questions at a later time.

Use documentary evidence.
For an example, timecards, expense reports, etc. whenever
appropriate to buttress your questions.

Be prepared for hostile or hesitant witnesses.

Don’t promise confidentiality when you cannot, as a
practical matter, deliver true confidentiality.
A typical example of misplaced promises of confidentiality
involves sexual harassment investigations. A promise of
absolute confidentiality generally conflicts with our legal
obligation to take prompt and appropriate remedial action.

Remember to ask the employee who is the subject of the
investigation to identify anyone (s)he can think of who
may have a bias against him/her.
Document non-responses as well as responses.

Wrap up an investigatory interviews by asking the
individual being interviewed if (s)he has any other
information relevant to the inquiry.
Again, document non-responses as well as responses.
10
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
G.
THE POST-DISCIPLINARY PERIOD
After disciplining employees, supervisors may understandably tend to
avoid them or to alter their attitude toward them in subtle, hardly
noticeable ways. But these shifts in attitude are particularly dangerous, for
they generate corresponding modifications in the employees’ attitudes.
Eventually, the whole relationship may be destroyed. In contrast, if
supervisors treat the employees as they always have, it indicates that it
was the performance or act that was punished, not the employee, and the
relationship may not be negatively impacted.
H.
DISCIPLINE WITHOUT PUNISHMENT - MOTIVATIONAL DISCIPLINE
Disciplinary approaches that treat employees as children who must be
punished for violating the rules, don’t work. Employees who are
disciplined using these tactics tend to respond with resentment, apathy or
anger, causing a decline in morale and productivity. Furthermore,
supervisors who view discipline in this way tend to avoid imposing
discipline because of its painful or unpleasant nature. In the meanwhile,
they create an “anything goes” climate.
Discipline which focuses on future expectations is much more effective
than discipline which focuses on past wrongdoings. A future oriented
“you can do it” disciplinary approach tends to provide an employee with a
positive challenge to improve his or her performance. A negative “this is
how bad you’ve been in the past” approach, on the other hand, tends to
confirm an employee’s own view of the futility of his efforts to improve.
Instead of correcting employee behavior, negative oriented early
disciplinary steps become a self-fulfilling prophecy. The employee
believes you have no faith in his/her ability to bring his performance
to the standards required and consequently makes no meaningful
effort to improve. Instead, he jus “hangs on,” until things get so bad
that you decide there is no alternative to discharge. Unfortunately, by
that time, the employee has succeeded in lowering the performance
standard for all the employees he works around.
This approach is called “positive” or “motivational” discipline. Instead, it
is a way of communicating progressive discipline. As distinguished from
the more traditional approach, as positive discipline focuses on individual
responsibility and decision-making instead of disciplinary penalties or
punishment. This “problem-solving” approach to discipline is based upon
the concept that employees are adults who prefer success to failure. It is
also founded on the simple belief that the primary responsibility for
complying with employer standards rests with the employee, not the
supervisor.
11
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
Managers and supervisors who use positive disciplinary techniques in
communicating disciplinary action will find that discipline is easier to
communicate and more effective. They will also find that their postdisciplinary contacts with the disciplined employee are less awkward.
The elements of positive discipline which should be incorporated into
disciplinary discussion are as follows:
1.
Remind the employee of the need to meet acceptable
standards of performance or behavior in the area in
question.
Do not berate the employee or focus on the fact that future
occurrences will result in more serious disciplinary action.
Although it is important for an employee to be put on notice of the
consequences of a failure to correct the problem, this message
should not be the focus of your discussion.
2.
Obtain the employee's agreement to correct the
performance deficiency or behavior in questions.
Although the employee may deny that (s)he deserves to be
disciplined for his/her performance or behavior, few employees
can deny the importance of complying with acceptable standards in
the future, i.e. getting to work on time; not stretching breaks;
completing work assignments on time; etc.
Gaining Agreement: The single most important objective of a
disciplinary discussion is to gain the employee's agreement to
correct the problem. This agreement is important for two reasons.
First, the employee is more likely to improve if (s)he agrees to it
than if compliance is imposed on him/her. Second, and more
important, if the problem continues and another disciplinary step is
required, the subsequent discussion will focus not only on the
continuation of the original problem but also on the employee’s
failure to honor his agreement -- a much more serious concern.
3.
State the specific change(s) that are needed.
4.
Express confidence that the employee will solve the
problem as a result of discussion.
The focus of the discussion should be on the future, not the past.
There is no substitute for a “you can do it” message.
12
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
I.
THE “JUST CAUSE” STANDARD
The guidelines arbitrators1 generally use to determine whether an
employer had just cause for disciplining and/or terminating an employee
are as follows:

Was the employee adequately warned of the consequences of
his/her Conduct?
The warning may be given through a distribution of rules and/or prior oral
or written warnings.

Was the employer’s rule reasonably related to efficient and
safe operations?

Did management
discipline?
investigate
before
administering
the
The investigation must be made before the decision to discipline is made.
Where immediate action is required, the best course is to suspend the
employee with pay pending an investigation.

Was the investigation fair and objective?

Did the investigation produce substantial evidence of proof of
guilt?
It is generally not required that the evidence be conclusive or “beyond
reasonable doubt,” except where the alleged misconduct is of such a
criminal or reprehensible nature as to stigmatize the employee and
seriously impair chances for future employment.

Were the rules, orders and penalties applied even-handedly
and without discrimination?
If enforcement has been lax in the past, management cannot suddenly
crack down without first warning employees of its intent.
In these circumstances it is generally advisable for the employer to “slate
clean,” i.e. notify employees that effective on a certain date supervisors
1
These guidelines are also useful as a checklist for avoiding employment discrimination and other legal
claims, even for “at will” employees.
Kathy A. Peck
13
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
will begin strictly enforcing the standard in question. Written notice is
preferred.

Was the disciplinary action taken reasonably related to the
seriousness of the offense and the employee's past record?
If one employee’s past record is a significantly better and/or longer term
than another, an employer properly may give employee a lesser degree of
discipline than the other employee for the same or similar offense. It is
important that supervisors do not use the presence of mitigating
circumstances as an excuse for lax or inconsistent enforcement of rules.
The exceptions should be rare and should not be allowed to swallow the
rule. Supervisors should also use care in documenting the legitimate,
nondiscriminatory reason(s) for departures from normal standards of
enforcement.
J.
WHAT MAKES A SUCCESSFULLY ADMINISTERED DISCIPLINARY PROCEDURE?
Remember that for every employee who is discharged, there are lots of other
employees watching to see why and how the employee is discharged, and
forming their attitudes toward management accordingly. These attitudes affect
productivity and morale. Although, not all our employees are covered by a
collective bargaining agreement “just cause” standard, as a company we strive to
make good decisions.
It is important, then, that discipline policies be carefully administered. A study of
successfully administered policies reveals this pattern:
1.
Disciplinary rules are carefully explained to the employees.
This is especially important in the case of new employees. Orientation
sessions, employee handbooks, bulletin board notices and many other
forms of bringing rules to the attention of employees are used.
2.
Violations of existing rules are not condoned.
Discipline should be administered in each case, even though this may not
be the full penalty allowed. If a rule is allowed to fall into disuse, and
management intends to tighten up on enforcement again, employees
should be given full notice of the change in policy. This “slate cleaning”
technique is a good way to correct lax enforcement.
3.
14
An investigation is conducted to determine if a discharge
decision is supported by facts.
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
Witnesses are interviewed, their statements recorded, and careful
investigation made to see that both sides of the story are available and
fairly presented. Circumstantial evidence is only relied upon if it is
convincing circumstantial evidence; personality factors and unfounded
assumptions are eliminated.
Supervisors should never make a snap decision. If there are legitimate
reasons for removing an employee from active employment, place the
employee on suspension pending investigation.
4.
Listen to the employee’s side of the story.
As noted previously, this is important for numerous reasons. First,
because it is the fair thing to do. Second, because it is important to have
the employee’s input before making a decision. Third, because by
listening to the employee, you can lock in his/her story. Lastly, juries and
judges do not like employers who fail to give an employee this
opportunity before making a discharge decision.
5.
Before disciplinary action is taken, the employee’s past record
is taken into consideration.
A good work record and long seniority are viewed as factors in the
employee’s favor, particularly where a minor offense is involved, or where
it is a first offense. Arbitrators are particularly prone to consider such
evidence.
6.
All management employees and particularly first-line
supervisors, must know and carefully observe disciplinary
policies and procedures themselves.
7.
Discipline short of discharge should be used whenever
appropriate.
Discharge is the “capital punishment” of the employer-employee
relationship. Therefore, it is important for supervisors to understand that
the judges, juries, administrative agencies, and arbitrators who review an
employer's discharge decisions tend to scrutinize the decision. In cases
where the employee was given a fair opportunity to correct the problem
and failed to respond, the sympathy these triers-of-fact feel for an
unemployed ex-employee can be more easily dissolved. The positive
discipline approach is also designed to provide employees a fair
opportunity to correct their deficiencies and, at the same time, document
acknowledgment of their deficiencies and commitment to correct.
15
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
K.
GENERAL TIPS FOR AVOIDING LIABILITY
1.
Do Not Say What You Do Not Mean . . . the Dangers of “Loose
Lips”
Many employment discrimination and other employee claims become
viable legal causes of action because a supervisor or manager made a
stereotypical or derogatory comment about members of protected classes
or employees who engaged in protected activity, i.e., women, older
employees, Afro-Americans, users of the workers’ compensation system,
etc. Even if the sentiment reflected by the comments is not used as a basis
for making an employment decision, a skillful plaintiff's attorney can use
these comments to create the perception that discriminatory animus does
exist.
2.
Do Not Allow Supervisors to Call a Discharge a Layoff
Supervisors struggle with implementing discharge decisions. Even when
it is imminently clear that the employee in question deserves to be
discharged, supervisors often worry about the impact a discharge will have
on an employee’s family. For these reasons, supervisors have been known
to soften the message by telling an employee that (s)he is being laid off.
Layoffs are appropriate only when there is a bona fide reduction in the
work force, not as a technique to rid an organization of a poor performer
without complying with customary progressive disciplinary procedures.
Supervisors who use this tactic to avoid complying with progressive
discipline or simply to avoid delivering a difficult message expose their
employers to a variety of employment law claims.
3.
Always Listen to the Employee’s Side of the Story - Even with
Probationary Employees
Supervisors should never make a snap decision before disciplining an
employee. The importance of conducting an investigation increases when
an employee is being considered for termination. If there are legitimate
reasons for removing an employee from active employment, place the
employee on leave pending investigation. Paid leave is required if the
employee has a liberty or property interest in his/her job. Witnesses
should be interviewed, and relevant documents, including information
related to the employee's past record, should be compiled before an
employee is confronted with potential disciplinary action.
Employees should NEVER be disciplined or discharged before they have
been given an opportunity to explain their side of the story. This practice
is important for a variety of reasons. It is not only fair and logical but is
16
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
important because employees who do not “go on the record” early in the
process have the unlimited opportunity to add to their explanations to
make their conduct more believable. Similarly, employees who fear
discipline or discharge may attempt to insulate themselves from such
action by adding claims of protected activity. An employee may claim
that the real reason her performance was inadequate is because her
supervisor was sexually harassing her or the real reason his attendance
was poor is because he hurt his back lifting something on the job the
previous week. Although the same assertions can be made regardless of
whether the employee was given a chance to tell his/her story before
disciplinary action was taken, it is more difficult for the employee to avoid
the inference that these claims were “made up” after the fact if (s)he was
given a chance to speak and did not. It is also more difficult for the
employee to add a retaliation claim to the list of potential causes of action,
e.g., a claim that (s)he was discharged because of his/her protected
activity. As a general rule, the earlier in the process that the employee
tells his/her side of the story, the more truthful the story is told.
Lastly, failure to provide an employee with a meaningful opportunity to
tell his/her side of the story will lead to a due process violation if the
employee in question is deprived of a property or liberty interest in his/her
job.
4.
Document Personnel Decisions
Virtually every study on jury behavior confirms the conclusion that jurors
absorb more from testimony in the form of written exhibits than oral
testimony. Employers who face applicants, employees or ex-employees in
employment litigation have a picture to paint to the jury. This “picture”
hopefully portrays employment action that is firm, fair and motivated by
legitimate, non-discriminatory considerations.
Documentation is
invaluable in helping an employer paint this picture.
Documentation also serves the secondary purpose of calming the nerves of
prospective supervisory and management witnesses by providing them
with tools to refresh their memories about incidents and meetings that
occurred months and sometimes years before trial.
5.
Address the “Bad Attitude” Employee
Employees who are negative, manipulative or back stabbing tend to erode
or even destroy morale among other employees in their work unit. Low
employee morale causes dissension which, in turn causes increased legal
claims, e.g. grievances, stress claims, complaints of discrimination and
harassment, etc.
17
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
Employees who demonstrate these behaviors should be notified, in clear
and straightforward terms that such behavior is unacceptable, e.g. that
employees are expected to be polite and cooperative in their contacts with
one another. Specific examples of unacceptable behavior should be
conveyed.
6.
Select the Right Reason for Discharge
Generally, when there is a solid reason for terminating an employee, - e.g.
falsifying an employment application; gross insubordination; serious
sexual harassment; etc., that reason should be cited as the same reason for
termination. In the unlikely event two solid reasons exist for terminating
an employee, both reasons should be cited as independent justification for
termination.
Employers who “throw in the kitchen sink” by citing numerous reasons
for termination that other employees have not been terminated for
committing, merely raise employment discrimination issues. These types
of non-dischargeable offenses may be cited as lack of reason for
mitigating the discharge decision, but not as causal factors.
7.
Comply with Due Process Obligations
The Fifth and Fourteenth Amendments provide that no person shall be
deprived of liberty or property without due process of law. To be
protected by this language, an employee must establish that (s)he has
either a “liberty” or “property” interest that may be impaired if (s)he is
suspended or discharged.
Once a property or liberty interest is established, a public employee has
the right to certain pre-deprivation procedural requirements. The nature
and extent of pre-deprivation requirements are subject to a balancing test
and vary depending on the nature and reasons for the action taken and the
availability of post-suspension/post-termination hearing procedures. As a
general rule, the pre-termination hearing rights do not require a full
evidentiary hearing prior to an employee’s termination, but instead require
that an employee provide the employee with notice of the infraction and a
meaningful opportunity to fairly address those allegations and crossexamine. This obligation generally requires:

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Notice of the charges against him/her. The notice must be
sufficiently clear to allow the employee an opportunity to refute
them in a pre-termination hearing. See Payne v. Department of
Commerce, 61 Or. App.; 565 P2d 361 (1982). (Pre-termination
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300
notice did not comply with due process requirements. Notice did
not indicate dates, parties involved or the kind of inappropriate
activity employee was supposed to have engaged.
8.

Notice of the sanctions being considered.

An opportunity to refute the charges either orally or in writing
before someone who is authorized to make or recommend a final
decision.
Recognize First Amendment Issues
The discharge or suspension of a public sector employee for exercising
protected speech, association or religious rights is unconstitutional and
actionable under §1983. These rights are not absolute. As a general rule,
speech that concerns public policy is more likely to be protected than
speech involving personal employment related matters. In determining
whether an employee’s first amendment expressions are protected, the
courts will balance the interests of the employee “as a citizen in
commenting on matters of public concern and the interests of the
employer.” Pickering v. Board of Education, 391 us 563 (1968).
9.
Comply with “Garrity” Obligations
When a public sector employee is being investigated for conduct that may
constitute a crime, that employee is protected from self-incrimination. In
order to avoid violating the employee’s self-incrimination rights, the
employee must be issued a “reverse Garrity” notice. This notice compels
the employee to answer questions that may be incriminating in an
employment investigation in exchange for the promise that his/her
answers will not be used in a criminal proceeding.
19
Kathy A. Peck
Williams, Zografos & Peck
PO Box 547, Lake Oswego, OR 97034
kpeck@wzplaborlaw.com
503-699-1300