Office of Human Resources Conducting Effective Employee Progressive Discipline utilizing FRISK & SKELLY Prepared by SOCCCD Office of Human Resources

Attitude toward Discipline Disciplining employees does not need to be a tense, nerve-wracking confrontation for supervisors and employees.

What is Progressive Discipline? An approach to dealing with performance and personnel issues. Founded on the premise that the actions taken are: Corrective rather than punitive Progressively more severe Appropriate to the nature of the problem

General Sequence of Progressive Discipline Counseling Reprimand Disciplinary Action Steps may be repeated before moving to the next level. Severe misconduct can result in immediate disciplinary action.

Components of Progressive Discipline Establishment and dissemination of clear, understandable policies, procedures, rules, instructions and performance standards Giving advance warning of the consequences of violations or deficiencies Consideration of an employee’s explanation of the circumstances in determining the action taken

Four Rules of Progressive Discipline Make sure to spell out to the employee exactly what the problem is with his/her performance; Make sure the employee understands what s/he must do to fix the problem; Provide the employee with a reasonable period of time to fix the problem; and Ensure the employee understands the consequences of inaction.

Progressive Discipline Documentation Informs employees of acceptable behavior Demonstrates management’s good faith effort to help correct unacceptable behavior Justifies more serious penalties Establishes pattern of recurring performance deficiencies

Human Resources Role HR should be consulted on all issues related to employee performance, employee status and interpretation and application of the collective bargaining agreements for employees. The HR Director or Assistant HR Director should be consulted when disciplinary actions are contemplated to assure that appropriate actions are taken. When it becomes necessary for disciplinary action to be imposed, the type and degree of discipline taken is determined by the appropriate supervisor or manager in consultation with the HR Director or Assistant HR Director. All disciplinary actions are subject to due process prior to their implementation.

What is Disciplinary Action? A disciplinary action is a suspension, demotion or dismissal. Letters of reprimand, counseling and warnings are pre-discipline measures, and are not considered formal disciplinary actions.

Degree of Discipline The degree of discipline is dependent upon several factors which must be taken into consideration: INTENT: What was the employee’s intention when the violation was committed? Was it a willful act or a result of carelessness and inattention? NUMBER OF OCCURANCES: How many times has the problem occurred? PREVIOUS CORRECTIVE MEASURES: What past measures have been taken in an attempt to correct the problem? TIME FRAME: Has the problem occurred frequently within a relatively short time?

Components of Just Cause Performance problem(s) clearly described in a specific, factual manner. Clearly informing employee of required standards of behavior and performance. Giving fair warning to employee of the consequences of continued poor performance or misbehavior. Providing reasonable time and fair opportunity to improve.

Components of Just Cause – Con’t Providing adequate assistance and direction to employee. Showing that conduct has a direct adverse impact on the job. Making sure the performance problem(s) and record warrant the proposed disciplinary action. Giving the employee the opportunity to receive and respond to derogatory documentation placed in personnel file.

FRISK Facts - of employee’s unsatisfactory conduct Rule - or authority violated by the conduct Impact – of the unsatisfactory conduct on the District Suggestions/Directions for Improvement – to assist employee in understanding proper conduct expected in future Knowledge – of employee’s right to respond to derogatory information placed in the personnel file (Education Code, Section 87031)

FRISK Documentation Model Primary Objectives Identify legally sufficient documentation Simplify the process by establishing a common framework Document Composition Document Selection Document Quantity

FRISK Model: The Progressive Discipline Process Should be given only after the employee has received both an oral and written warning Evaluator should start at the first step whenever possible To be used when warranted by nature of offense Letter of Reprimand Oral Warning/ Conference Unsatisfactory Evaluation Written Warning Suspension Without Pay Dismissal Next step after oral warning when employee repeats same unsatisfactory conduct Evaluator should formally document unsatisfactory performance Final and most severe step in the process

Deciding on Whether to Take Disciplinary Action When deciding whether or not to take disciplinary action, consider the following: The circumstances surrounding the violation The seriousness of the employee’s action and the effect of the action The employee’s intent The degree of disciplinary action taken in prior similar situations

Causes for Disciplinary Action Causes for dismissal, demotion, or suspension (Education Code, Section 89535). Any permanent or probationary employee may be dismissed, demoted or suspended for the following causes: Immoral conduct Unprofessional conduct Dishonesty Incompetency Addiction to the use of controlled substances Failure or refusal to perform the normal and reasonable duties of the position Conviction of a felony or conviction of any misdemeanor involving moral turpitude Fraud in securing appointment Drunkenness on duty

Impact of Employee Status on Disciplinary Action Decisions The causes for dismissal, demotion, or suspension listed in Education Code, Section 89535 are legal conclusions which must be supported by specific evidence which establishes that certain factual events have occurred. While the principals of progressive discipline are the same for temporary, probationary and permanent employees, the employee’s status may affect how the procedures are applied. A probationary employee (serving a specified period of probation in a classification) who’s performance warrants disciplinary action can, and depending on the severity of the situation, should be rejected during probation. For a temporary employee (serving with a specified end date and not granted permanent status), the due process requirements are not as stringent with regard to continued employment because the employment may be terminated prior to the specified end date when appropriate notification is given. A permanent employee (has served and completed a period of probation in a particular classification) has status which grants him/her the right of continued employment unless the employee is terminated for “just cause”, lack of work or lack of funds.

Counseling/Verbal Discussions Documentation should begin as soon as the supervisor or manager first notices a situation that may require corrective action. The goal of meeting with the employee is to establish a clear understanding of the problem(s) and of the supervisor’s expectations. Determine the specific problem(s); Discuss the problem(s) with the employee; Identify possible solutions and outcomes; Agree on a specific plan of action; and Set a specific timeline for follow-up. The written summary reiterates the discussion and the agreements reached. Since the object is to correct, not punish, this record is not written in a disciplinary format or tone. Subsequent to the meeting, the substance of the meeting should be documented in writing and a copy given to the employee as a record of what was discussed.

Written Reprimand The counseling session with the employee serves as a forum to identify the employee’s areas of difficulty and to clarify the supervisor’s expectations of the employee. However, if the employee fails to correct his/her performance deficiencies, a written reprimand is normally the first step in officially documenting the problem. The written reprimand takes the form of a letter or memorandum in a specific format. The written summary reiterates the discussion and the agreements reached. Since the object is to correct, not punish, this record is not written in a disciplinary format or tone.

Writing the Letter of Reprimand Formally recognizes that a performance problem exists and sets forth action for the employee to take to avoid future difficulties. Document is prepared by the employee’s supervisor. Prior to issuance, the supervisor should review it with his or her manager/supervisor and Human Resources.

Components of the Letter of Reprimand Employee Signature Acknowledging Receipt of Letter Statement of Employee’s Rights Statement of Future Action if No Improvement is Made Summary of Specific Rule or Policy Violated Review of Past Corrective Measures The Specific Nature of the Problem Reason for Reprimand

Writing the Letter of Reprimand Should contain the following: Be labeled as a reprimand The reason for the reprimand The specific nature of the failure (i.e. poor attendance, habitual tardiness, failure to meet deadlines, etc.) A review of what corrective measures have been taken by the supervisor up to this point A statement of specific rules or policies violated, as well as a statement of what is expected of all employees, especially the employee receiving the reprimand A statement of possible future actions against the employee if s/he fails to improve or meet expected standards. Clearly indicate imposed time requirements for employee improvement. A signature line for the employee’s signature with a statement that the employee acknowledges receipt of the reprimand.

Discussing the Reprimand A meeting should be conducted in conjunction with the issuance of a written reprimand. The meeting should focus on answering any questions the employee may have. The supervisor should discuss the reprimand with the employee to ensure that the employee clearly understands the reason for the action. The employee has a right to request that his or her representative be present at a meeting which the employee reasonably believes might result in adverse action against him/her.

An employee cannot be penalized for exercising this right. “Weingarten Rights” In NLRM v. J. Weingarten, Inc. (1975), the U.S. Supreme Court established that an employee who reasonably believes that an investigatory meeting may lead to a disciplinary or adverse action has the right to Union representation. An employee cannot be penalized for exercising this right. Weingarten Rights are not applicable in routine discussions involving normal work instructions or procedures.

Employee Rights After receiving a written reprimand, the employee may exercise his/her rights as follows: The employee, upon request, has the right to meet with the supervisor or manager to discuss the reprimand. The employee has a right to be represented at the meeting by an individual of his or her choice. The employee must receive a copy of the reprimand prior to its placement in the official personnel file. The employee has the right to submit a rebuttal statement that will be attached to the reprimand in the personnel file. Upon the employee’s request and in accordance with provision of the collective bargaining agreements, the reprimand subsequently may, but not necessarily will, be removed from the official personnel file.

John F. Skelly v. State Personnel Board Supreme Court of California (1975) The California Supreme Court found that public employees had “property rights” in employment that equated to an implied contract of continued employment unless just cause was demonstrated.

John F. Skelly v. State Personnel Board Case argued that degree of punitive action – in this case – wrongful dismissal, taken against “permanent civil service employees violates the due process clauses of the Fifth and Fourteenth Amendments to the US Constitution and article 1, sections 7 and 15 of the California Constitution”

John F. Skelly v. State Personnel Board The Skelly decision required public employers to provide certain safeguards before imposing disciplinary actions on employees. In particular, the decision requires that an employee be given the opportunity to know the basis for the disciplinary action, and to have the action reviewed prior to the sanction being imposed.

John F. Skelly v. State Personnel Board The Supreme Court of California ruled that the State Personnel Board clearly abused its discretion in subjecting Skelly to the most severe punitive action possible for his misconduct. Skelly’s dismissal was ruled improper for two reasons: The procedure used by the State Personnel Board denied him due process of law; and, The penalty was clearly excessive and disproportionate to the misconduct on which it was based.

Sufficient Just Cause Was the employee forewarned of the consequences of his/her actions? Is the rule or standard of conduct which has been transgressed reasonable? Was sufficient effort made before discipline was recommended to determine guilt? Was the investigation conducted fairly and objectively? Does substantial evidence of the employee’s guilt exist? Are the rules of conduct applied fairly and without discrimination? Is the degree of discipline recommended reasonably related to the seriousness of the offense?

Our Challenge “To create a performance management process that is a model for excellence within the California Community College system”

SOCCCD What’s in it for SOCCCD? Increased morale, productivity and accountability Ability to attract and retain the best and brightest Opportunity to create a culture that promotes performance enhancement

What do we need from Administrators and Managers? SOCCCD Willingness to: Understand and follow the FRISK & Skelly guidelines for all disciplinary issues Shift thinking to focus on results rather than effort Provide feedback/share successes and lessons learned with one another

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Evaluation Plan Developed by Human Resources PERFORMANCE EVALUATION PRODUCTIVITY ATTENDANCE INITIATIVE OVERALL RATING