Drake Maynard HR Services, LLC 919.259.3415 | dmhrservices@gmail

1. PERFORMANCE EVALUATIONS, DISCIPLINE AND GRIEVANCES – THE YUCKY STUFF THEY DIDN’T TEACH IN SOCIAL WORK CLASSES NCCDSS Personnel Conference Fayetteville | September 2019 Drake MaynardHR Services, LLC919.259.3415 | dmhrservices@gmail.com

2. My Goals Today • Share ideas on effective performance evaluation • Cover the basics of discipline and dismissal, regardless of your process • Share ideas on effective handling of internal grievances • Incorporate your participation into this session

3. Our Context Today • Consolidated, non-SHRA departments • Consolidated, SHRA departments • Non-consolidated, SHRA departments

4. More Context • Shared context – All your employees are county employees • Shared context – NOBODY should be looking at State HR Manual • Partially shared context [SHRA] – rules of SHRC and N. C. G. S. Chapter 126 • Major difference – consolidated non-SHRA and everybody else

5. On to the Yucky Stuff!

6. Yucky stuff – 1 Performance Evaluations

7. Be Honest If you’re not going to be honest and fact-based, don’t bother.

9. How to Prepare For a Performance Evaluation • Review your notes from the evaluation period (You DO have notes, don’t you?) • Write out a draft of your evaluation, using whatever form your county uses. • Go over the form. Do you have specific examples of good performance? Performance that needs improvement? Be prepared to share.

10. This Is A Difficult Conversation – Prepare For It • Be honest and fact-based. If you’re not going to be honest, don’t bother. • Prepare in advance/rehearse. • Be prepared to discuss the consequences of this evaluation (good or bad). • Give a examples/data. Use names/dates/times/places - specific behavior/performance • Prepare for employee’s response/s

11. Employee’s Reactions You need to try to anticipate how the employee will react. • What about SoAndSo? They didn’t do as well as I did and they got a higher rating. • You didn’t get any of this right. • I don’t agree with this and I’m not signing it. • I disagree with [this specific item] • Dead silence

12. Next Steps • Once you anticipate possible reactions, develop and rehearse your response. • Make sure that you encourage employee participation in this conversation

13. It’s a Dialogue – Not a Monologue

14. Wrapping the Discussion Up • Make sure you talk with employee about short-term and long-term career development and goals • If corrections need to be made based on this evaluation, don’t end without a plan, including goals and a feedback process.

15. Other Ideas for Effective Evaluations • Review your supervisors’ and managers’ evaluations before they give them to employees • Remind supervisors and managers well in advance of evaluation deadlines • Have negative consequences for failure to meet evaluation deadlines

16. Why Bother to Do Performance Evaluations? • Not connected to pay • Not connected to anything employees are interested in like training, conferences • Not connected to promotions or transfers • Not connected to discipline or other negative consequences

17. Why Bother to Do Performance Evaluations? – Part II • Too involved/too long/too much trouble for already hard-pressed supervisors • The “Lake Woebegone” effect • No negative consequences for the “Lake Woebegone” effect

18. Be Honest If you’re not going to be honest and fact-based, don’t bother.

19. More yucky stuff – 2 discipline

20. Things We have in Common • It’s written down • General structure of disciplinary process • Division between performance and conduct based discipline

21. What Is Different SHRA: • Process imposed from outside • Property interest/due process • Compliance with process reviewed by outside agency (OAH) and courts Non-SHRA: • Process imposed from within • At-Will PLUS* • Compliance with process not reviewed outside county*

22. Amended SHRC Rules – 9 – 1- 2019 • 25 NCAC 01I .2302 Dismissal For Unsatisfactory Performance Of Duties • 25 NCAC 01I .2303 Dismissal For Grossly Inefficient Job Performance • 25 NCAC 01I .2304 Dismissal For Unacceptable Personal Conduct • 25 NCAC 01I .2305 Written Warning • 25 NCAC 01I .2306 Disciplinary Suspension Without Pay • 25 NCAC 01I .2307 Demotion • 25 NCAC 01I .2310 Appeals

23. Things to Keep In Mind • Maynard’s Law: No good deed goes unpunished • The employee who makes the most trouble for you is the one you don’t fire • Nothing fixes itself.

24. Moving into Discipline For job performance – discipline is the last resort – after the performance evaluation process and feedback and counseling. For personal conduct – discipline should be much quicker and more serious.

25. The Transition to Discipline • Informal – feedback, offer of training, mentoring, • Counseling (required) • More formal – performance rating • Even more formal – a Performance Improvement Plan • Discipline

26. Things to Ponder • What’s the purpose of discipline? Why bother? • What if I just ignore poor performance or bad behavior? Will it go away by itself? • When do I begin the disciplinary process? • How can I tell if I’m dealing with poor performance or bad behavior? Does it make a difference?

27. Why Do We Discipline? • To be good stewards of our investment in our human resources. • To get individuals out of the workplace who cannot/will not conform their behavior to our standards.

28. General Disciplinary Structure • Division into performance-based and conduct-based • Performance = warnings prior to serious discipline • Conduct = may take discipline, including dismissal, without prior warnings

29. Managing Performance Performance is: • Accuracy • Timeliness • Quality • Quantity • Attendance • (and maybe, customer service, team work)

30. How Do I Address Irregular Attendance?

31. Irregular Attendance • Make a decision to deal with this. • Document unscheduled absences, including arriving late, leaving early or unacceptably long meal periods. • Meet with employee in your office. • At the start of this discussion tell employee you have an issue to discuss, but you’d like him/her to wait until you’re finished before responding. • Explain that there is a problem with the employee’s attendance. • Set out documentation demonstrating the number of unscheduled or pattern absences. • Tell the employee the effect this is having on the organization, especially on other employees.

32. Irregular Attendance • Don’t ask why – because you don’t care – the problem is not being at work* • Provide a new standard for attendance going forward. • Set a timeline for feedback on employee’s meeting the new attendance standard. Make sure employee knows that failure to reach and sustain required attendance WILL result in discipline and may result in loss of employment. • NOW allow the employee to respond. • Make sure that before the meeting ends, that the employee understands the situation and the consequences of failing to correct the issue. • Follow through.

33. What Do I Do with “Attitude”?What Do I Do About Gossiping?

34. What Can Go Wrong Here? • Lack of documentation • Failure to set out all the necessary parts for a written warning/serious disciplinary action • The FMLA cheat

35. How To Avoid Being A Problem Magnet – Discipline & Dismissal • Make sure the facts support your reason for taking action • Think twice (then think again) about terminating an employee for poor performance with one or more recent good evaluations • Investigate promptly and take appropriate action • Trouble NEVER goes away – don’t just stand there, do something

36. How To Avoid Being A Problem Magnet – Discipline & Dismissal • Always follow your own policies and procedures and if you don’t, have a terrific reason for doing so [not that it will help] • Document, document, document • Do Not Retaliate • Give a reason for termination (and NEVER change your reason)

37. Even more yucky stuff - 3 Grievances and appeals

38. The Same and The Different • SHRA and consolidated SHRA are subject to the same rules for internal grievance processes. • Consolidated non-SHRA departments are subject to your county grievance procedure. • Internal grievance procedure final decisions by SHRA and consolidated SHRA departments for career status employees are reviewable by the OAH and the courts. • Not aware of any review process outside the county for final grievance procedure decisions for consolidated non-SHRA departments.

39. Consolidated Non-SHRA Departments • Subject to County grievance procedure • What is/isn’t grievable is set by county policy • Who is final decision maker set by county policy

40. How Did We Get Here? SHRA and consolidated SHRA departments: • Only employees with career status must have access to grievance procedure. • Under SHRA rules, written warnings are not grievable. • Generally, a disciplinary action that requires a pre-disciplinary conference (demotion/SWOP/dismissal) is grievable. • Allegations of discrimination, harassment and retaliation are grievable. • All grievances must be filed within 15 calendar days from the event or action.

41. Mistakes to Avoid If you’re an SHRA or a consolidated SHRA make sure you have a written grievance procedure that: • Doesn’t involve your board; • Doesn’t involve any county management, county commissioners or county HR; • Makes the director the final decision maker with no further review in the county; • Adequately informs your employees of their rights to appeal to OAH.

42. Elements of an SHRA Grievance Procedure • Who is covered • What is grievable • What isn’t grievable • Time frame to file • Steps in the process (usually only 1 or 2) • Nobody is represented by an attorney • Who is final decision maker for the agency (the director) • What happens after director makes final agency decision

43. What Happens After Director Makes Final Agency Decision Make sure your grievance procedure contains exact, correct and specific instructions on how to appeal to OAH including: • Time frame (30 days) • Use of named OAH form H-06a – available at https://www.oah.nc.gov/documents/form-h-06a-personnel-petition-form • OAH petition filing fee: $20 [currently] • Filing fee may be paid in cash, (only in person at OAH, offices in Raleigh), money order, certified check or a check drawn from an attorney’s operating or trust account.

44. More on OAH Filing • Notify employee in decision that OAH must receive petition form with certificate of service to your department within 30 calendar days of receipt of the final decision. • Be aware that ALJ’s have allowed clearly untimely petitions in the past because department did not provide ALL this information to grievant.

45. If Your Decision is Appealed . . . Get the certificate of service to your attorney ASAP.

46. Questions?

47. My Contact Information Drake Maynard dmhrservices@gmail.com 919.259.3415