HR STAR CONFERENCE 2009 Cleveland, Ohio

1. HR STAR CONFERENCE 2009Cleveland, Ohio Implementing Progressive Discipline to Improve Performance Gregory A. GordilloGordillo & Gordillo, LLC July 29, 2009

2. Progressive Discipline Advantages • Focus on training not punishment • Keeps employees informed • Insures equality in discipline • Provides defense to claims of unlawful employment practices

3. Progressive Discipline Disadvantages • Requires more management training • Requires more documentation and follow up • Requires more disciplinary planning • Can create false impression of right to due process

4. 4 Steps to Progressive Discipline • Verbal Warning • Written Reprimand • Suspension • Termination

5. Demotion or Transfer? • Save for rare incidents • Retain discretion in policy application

6. Characteristics of Effective Policy • Hot Stove Rule • Gives advance notice: Everyone knows it’s hot; • Has immediate consequences: Touch it and get burned; • Is consistently applied: It burns every time; • Is equally applied: Everyone who touches it gets burned.

7. Characteristics of Effective Policy • Clearly Communicated • Consistently Followed

8. When to begin: The pre-discipline investigation • Facts known to mgmt? • Rule known to employee? • Rule related to safety or productivity? • Similarly situated employees disciplined? • Discipline fit prior record?

9. When to begin: The pre-discipline investigation • history of prior, acts and consequences researched? • Does the contemplated discipline match the employee’s history?

10. Categories of Misconduct • Minor • Major 1 • Major 2 • Terminable

11. When to begin: The pre-discipline investigation • Considered mitigating factors? • Heard employee’s story? • Do documents support reasoning? • Will termination prevent soon available benefits from vesting?

12. Contract Rights? • CBA • Grievance procedure • Union notice • No more Weingarten rights • Express Contract • Implied Contract • Promissory estoppel

13. Implementing Discipline: Verbal Warning • For minor infractions; • After prior counseling; • After employee knew exact expectation; • After the employee was properly educated; • After determining that nothing prevented employee from complying with requirement.

14. How to give verbal warning: • Conversation is serious but friendly • Conversation is private • Conversation is specific

15. The specifics of verbal warning • Reason for conversation: Performance Improvement • Cause for conversation: Specific violation • Remind employee about prior related conversations

16. The specifics of verbal warning • Give employee opportunity to respond • Provide specific performance benchmarks necessary to correct problem • Notify employee of consequences for failure to comply

17. The Documented Verbal Warning • Date • Reason for counseling • Length of discussion • Supervisor’s name • Omit reference to discipline

18. The Documented Verbal Warning • Date • Reason for counseling • Length of discussion • Supervisor’s name • Omit reference to discipline

19. Sample Memo “I gave an oral warning to Joe Donut today for standing on top of a stepladder when he was changing a light bulb. I reminded him about our prior conversations concerning how unsafe he was when standing on the top rung of a ladder. He said he would use a different ladder in the future. The conversation lasted approximately 2 minutes.” Mary Scott, February 14, 2009.

20. Implementing Discipline: Written Reprimand • Given immediately for major infractions that do not merit suspension; and • Given for repeated minor infraction after verbal warning.

21. Names Dates Reprimand Infraction Prior warnings Reference to prior counseling Specific violation Specific performance required to correct problem Consequences for failing to correct Reminder of at-will employment Prepare the Document

22. Complete the Document • Give employee opportunity to respond. • Add any appropriate employee comments • Obtain employee’s signed acknowledgment or note refusal to sign.

23. Implementing Discipline: Suspension • Given for major infractions; or • Repeated infractions not previously prevented by verbal warning or written reprimand.

24. To Pay or Not to Pay? • Consider using unpaid suspension, but make it punitive. “Decision day off” • Exempt employees only suspended for: • full days and • serious rule violations.

25. Implementing Discipline: Termination Checklist • For non-discriminatory, job-related reason? • Motivated by a prohibited reason? • Contract obligations? • Has employer complied with policies? • Thorough investigation completed? • Consistent with other discipline? • Are lesser sanctions appropriate? • Should legal counsel be consulted?

26. Documenting Termination • Identify rule violation; • Describe how employee knew of rule and consequences for violating it; • Specify how employee failed to comply; • Confirm that documentation is consistent with similarly situated employees’ documentation.

27. Notifying Terminated Employee • Two witnesses should be present • Keep the meeting short • Inform directly that employment is terminated • Avoid stating specific reasons • Do not argue or debate • Protect the employee’s dignity