3. Performance
• Problems doing the job
• Usually trying their best
• Lack of intention to
cause a problem
• Additional training
mentoring can resolve
issues
• Will not do the job
• Willful action or
repeated neglect
• Know consequences exist
• No training can resolve
Misconduct
4. Important Considerations for Both
• Consistency
• Implicit Bias
– Harsher to any particular protected class
– Women, minorities get more scrutiny?
• Examples, Examples, Examples
• Documents!
5. Performance
• How an employee DOES his job
• Examples of poor performance:
– Using the wrong tool
– Failing to understand Code
– Wrong numbers
– Wrong process
• Can he improve?
• Can he learn?
7. Performance Improvement Plan
• What’s the issue?
• Did the employee
know the expectation?
– Position description
– Job posting
– Work direction
• Did the employee
know this was a
deficient performance?
15. Policy
Your conduct is an important factor
affecting the Company’s success. When an
employee’s conduct is unsatisfactory,
insubordinate, threatening, disruptive,
intimidating, or violent, disciplinary action
may be taken. Disciplinary action may
range from an informal discussion to
immediate involuntary termination.
16. Union Environment
• May be very different.
• May have bargained over the content of a
conduct or disciplinary policy.
18. If Not Unionized…
Savings clause:
• Employees who violate this policy may be
subject to discipline, up to and including
immediate termination of employment.
• The Company determines discipline on a
case-by-case basis and may not follow any
progressive discipline practice given the
circumstances of each case.
21. Disciplining an Employee
• Not easy
• Requirement of
management &
supervisors
• Necessary to maintain
morale
22. Before Disciplining the Employee
• What’s been done
before?
– Consistency
– If outside of norms, why?
• Status of the employee
– Leave?
– Protected class?
– Recent complaint?
• Document!
– The misconduct
– The decision
– The discussion
– The consequences
23. Documentation
• Evidence of misconduct
– Email/note from supervisor
– Timesheet/speeding ticket/photos (if any)
24. Documentation
• Discussion of misconduct
– Email/note(s) from discussion with supervisor and
decision maker
– References to any policies
• Written discipline
– Even if a verbal warning
Juries believe documents more than employers
25. A Few Words about Email
• Hard to lose or destroy
• Timely
• Easy
• Timestamped
• Password protected
• Makes for great evidence
26. But Don’t…
• Add unnecessary
opinion
• Would you like
the email read to a
jury?
• Discipline via
email!
27. The Meeting
• In person whenever
possible
• Usually pretty short
• Should NOT look
like this
28. The Meeting
• Explain the situation
• Ask to confirm misconduct
– Could have a reasonable explanation
– Give time to explain
29. The Meeting
• Ask if understood expectation or why
conduct requires discipline
• Explain consequences
– What it means for work
– What it means to you
• If true, express belief employee will
improve
• Recap meeting with notes or email
30. Refuses to Sign
• Want employee to
acknowledge misconduct
• Refusing to sign means
nothing
• Note the employee
refused to sign
31. What NOT to do
• Don’t take action out of anger
• You may have to explain yourself
32. Termination Hot Spot
Social media implicates many different
areas in employment law – discrimination,
privacy and labor relations – and gets both
employees and employers in trouble.
34. Privacy Issues
• Can’t go into social media accounts
without express permission
• Can’t ask for passwords and usernames
• Don’t monitor
– If something comes up, it will come to you
36. What should you do?
• Take a breath
• Walk through a decision with a trusted
colleague or other advisor to check logic
• What has happened in the past?
– Consistency
– Explain deviations from norm
• Don’t hesitate to call a lawyer
– We’re cheap at the start
– We get expensive after
37. What about “at will employment”?
At will employment is not a get
out of jail free card.
Exactly what you want to accomplish
How will she demonstrate she is meeting the goal
How is this tied to the job
Rapid Global Business Solutions supervisor Kelsey Rossey acknowledged that Banks’ comment was an expression of his religious convictions, but “the tone of the comment … was discrimination in and of itself and that’s not something that we can protect.” -