2012 Annual Pupil Transportation Conference June 20, 2012 Roanoke, Virginia

Employee Evaluations and Discipline: How to Handle Them Effectively and Stay Out of Legal Hot Water Yvonne S. Wellford Senior Assistant County Attorney and Counsel to the Hanover County School Board

Employee Evaluations Framework of an Effective Evaluation core responsibilities Focus on employee’s core responsibilities based on the position the employee holds performance targets Develop performance targets for the employee that are job-related Tie Tie the evaluation to the performance targets you developed in the prior year Avoid commenting on the employee’s personal life – stick to how he/she performs the job

Employee Evaluations Fair and Accurate Effective Evaluations Are Fair and Accurate candid Be candid – don’t give undeserved charitable evaluations Identify the employee’s shortcomings, as well as strengths constructive Be constructive examples Support your comments with examples

Employee Evaluations Advantages improve May improve employee’s performance! fair warning Will give employee fair warning of the need for improvement morale Can enhance overall morale in your workplace (hardworking employees expect you to require similar effort from all) supporting documentation It’s supporting documentation for subsequent disciplinary actions and any challenges to them by employee grievance or lawsuit

Employee Evaluations It’s hard to explain away positive evaluations if it’s in writing A jury is likely to think: if it’s in writing, it must be true Consider these examples...

Employee Evaluations Conferences Face to face Face to face discussions of evaluations Conference should involve the employee and the supervisor – not a committee respond Allow the employee to respond to the evaluation, offer his or her comments and put them in writing sign The employee and supervisor should both sign the evaluation

Employee Evaluations Confidentiality need to know Share the contents of performance evaluations only with those who need to know about it

Employee Discipline Documentation Should support the reason for and fairness of the personnel decision you can’t remember everything Use it because you can’t remember everything that may be important employee’s signature Obtain the employee’s signature on all documentation that should be included in the personnel file (evaluations, written warnings, corrective action plans) Juries expect employers to make written records of employee performance problems

Employee Discipline Progressive Discipline can be corrected through counseling For problems or policy violations that can be corrected through counseling understanding of the consequences Gives employees an opportunity to choose their future course of action with a clear understanding of the consequences inform opportunity to improve Demonstrates that the employer took reasonable steps to inform the employee of the problem and provided an opportunity to improve

Employee Discipline Preparing for disciplinary action Inform the employee Inform the employee of the specific allegations that might result in disciplinary action Investigate Investigate the facts (including giving employee a chance to explain his/her side of the story) knew or should have known Determine whether the employee violated a policy or procedure that he/she knew or should have known about

Employee Discipline Stay consistent – how have others been disciplined for this problem? recent complaints retaliation Determine whether the employee has filed any recent complaints (including the EEOC, Dep’t of Labor or internally) about the workplace. Disciplinary action could be considered an act of retaliation.

Employee Discipline Reasonableness of disciplinary action punishment fit the offense Should be related to the seriousness of the offense – make the punishment fit the offense past disciplinary record The employee’s past disciplinary record should be considered

Employee Discipline Take prompt action when the problem arises Take disciplinary action when the problem arises – not weeks or months later inaction as accepting VEC may view employer’s inaction as accepting the employee’s misconduct

Employee Discipline Delivering the message Tell employee the disciplinary action to be taken in a meeting with the supervisor and another management team member Tone of the meeting should be professional and calm Limit discussion Limit discussion to the disciplinary action being taken, the reasons for doing so, and the consequences of further policy violations or performance problems

Employee Discipline provide information The goal is to provide information to the employee – not to debate your decision or to discuss another employee If delivering anything more serious than a counseling, be prepared with the written warning, corrective action plan, etc. to give to the employee employee’s signature Obtain employee’s signature on your copy to acknowledge he/she received it.

Employee Discipline Case Study: Stein v. Churchville-Chili Central School District School District received parent complaints about Stein, a bus driver Stein had taken pictures of students, they claimed District investigated and found Stein had numerous performance problems and had engaged in misconduct Stein used profanity, drove at excessive speeds, misused the microphone on the bus, stopped the bus suddenly to throw students against other students, mocked students District had received complaints about Stein’s inability to get along with & control students during the prior school year

Employee Discipline When the District terminated Stein, he sued for age discrimination Court ruled in favor of the District. Why? “The District investigated and found credible a number of allegations... relating to Stein’s failure to perform appropriately as a school bus driver.”

Employee Discipline What worked well for the District? documented They documented the complaints about Stein and their investigation of them investigated They investigated the facts acted promptly They acted promptly

Questions?