IPMA – HR CONFERENCE EFFECTIVE DISCIPLINE & DISCHARGE Portland, Oregon May 5, 2006 Presented by: Kathy A. Peck Willi

1. 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

2. TOP 10 REASONS WHY WE FAIL TO EFFECTIVELY ADDRESS EMPLOYEE ISSUES • The replacement could be worse • It will go away 3. It won’t work anyway • We might be sued • 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

3. 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. CONSEQUENCES OF FAILURE TO ACT: THE FISHBOWL EFFECT

4. 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

5. GOLDEN RULES OF EFFECTIVE DISCIPLINE •RULE OF IMMEDIACY •RULE OF CONSISTENCY •RULE OF IMPERSONALITY •RULE OF POSITIVISM

6. STYLES OF SUPERVISION • BRICK WALL • JELLYFISH • BACKBONE

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. DUE PROCESS NO CITIZEN SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTYWITHOUT 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.

13. 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.

14. 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)

15. 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.