1. Documenting Marginal Employees
Karen Fuller, Chief Technology Officer
Klein ISD
Hedda Alexander, Technology Director
Jacksonville, ISD
Lena Engel, Attorney
Rogers, Morris & Grover, LLP
Texas CTO Clinic  June 22, 2016
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2. Topics 1) Setting the Stage: District Experience and
Real-World Examples
2) Legal Framework: Discipline and Documentation
3) Best Practices
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3. Topic 1 Setting the Stage: District Experience and Real-World Examples
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4. Topic 2 Legal Framework: Discipline and Documentation
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5. Who gets documented? Contract employees Non-contract employees
Chapter 21
Non-Chapter 21
Non-contract employees
At-will employees
Chapter 21: full-time professional employee required to hold a certificate issued under Ch. 21
Non-ch. 21: professional employees who are not entitled to a chapter 21 contract – associate or assistant directors
Everyone else is at-will
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6. Who gets documented: Non-Chapter 21 Contract Employees
Administrative contracts
Generally, management level
Usually 1-year term
Do not carry Chapter 21 rights
Termination (during contract): Policy DCE – good cause
End of term: Policy DCE – any reason or no reason
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7. Who gets documented: At-will employees
Policy DCD
Who are generally at-will employees?
Technical employees; clerical employees; paraprofessional employees; professional employees not entitled to a Chapter 21 contract and not employed by a written contract
Can terminate for any reason that’s not illegal or no reason
But, cannot terminate for an illegal reason
Race/color, sex, national origin, religion, disability, retaliation, etc.
STILL NEED DOCUMENTATION!!!
-The employment at will doctrine means that the district has no duty to an employee regarding continuation of employment.
But, - an at-will employee cannot be discharged if the sole reason for the discharge was that the employee refused to perform an illegal act.
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8. What gets documented? Failure to comply with job requirements
Attendance
Job Description/Performance of duties
Failure to maintain required qualifications/certifications
Failure to attend staff development
Communication issues (could fall into either category)
Violations of policies, procedures, and directives
DH – Employee Standards of Conduct (Code of Ethics)
Insubordination
Acceptable Use Policies
Confidentiality obligations
District Contractual obligations
Community issues
End: We will discuss some examples of documentation of these issues at the end of the presentation.
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9. What gets documented? One-time, big and bad incidents
So big and bad that the conduct alone will likely lead to termination
Examples: drugs at work, assault, failure to report child abuse/neglect, etc.
Patterns of conduct
Low-performing employee, non-serious violations of policies and procedures
Usually events over a period of time
Examples: competency issues, tardies, etc.
End: We will discuss some examples of documentation of these issues at the end of the presentation.
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10. Why document: At-will & Contract Employees
Primary purpose: Improve Performance
Puts employee on notice of deficiencies or problems in performance
Allows supervisor an opportunity to inform employee of what is needed for improvement
Provides employee clear direction on how to improve
Documentation often perceived as a negative – change that perception! – should show parties are working together to improve
Not “writing up” employee – documents are to identify problems and to suggest ideas and methods to improve performance
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11. Why document: At-will & Contract Employees
Negates the “it never happened” defense
Employee can’t later say “I didn’t know” or “They never told me”
Helps supervisor remember specific details at grievance, hearing, or other proceeding which may occur several months after events occurred
Documentation makes it easier for multiple or successor supervisors to track behavior, performance
Demonstrates history and/or patterns of employee’s performance
Eliminates the “I’ve never had a problem before” attempt to blame personality conflict with supervisor
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12. Why document: At-will Employees
At-will employees may be terminated for any reason so long as not an illegal reason
What is an illegal reason?
race, color, national origin, religion, sex, pregnancy, disability, age, genetic information, retaliation
At-will employees can bring grievances, lawsuits, file complaints with the EEOC, TCHR, SBEC, OCR, etc.
If no documentation, district will have no proof to defend itself…and possibly you!
End: For example, let’s say that one of your employees is continually late to work every day. You call the employee in, give her a directive to report to work on time every day. You complete a “verbal warning notice” to document your counseling session. The employee makes no improvement and continues to arrive late every day, so you complete a formal written warning to the employee again directing her to arrive on time. The employee makes no improvement, so District discharges the employee, who happens to be pregnant. You know that the reason the employee was discharged was because of her habitual tardies; however, the employee files an EEOC charge alleging that she was discharged because she was pregnant. By law District must respond to the EEOC charge and provide evidence of the REAL reason the employee was discharged – her tardies, not her pregnancy. If there is no documentation of the tardies, it is District’s word against the employee’s word. Documentation is VERY important – again, even for at-will employees. At-will employees can bring EEOC claims (claims of age, race, sexual discrimination claims), workers’ compensation retaliation claims, and even disputes about unemployment claims.

13. What type of documentation?
Notes to the file
Even for informal verbal counseling
Verbal Warning Notice
Memoranda
Documenting specific incidents of misconduct
Documenting conferences
Written Disciplinary Notice
Performance Improvement Plan
Evaluations
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14. What should documentation look like?
Documentation should tell the whole story as if you were not going to be there to tell it
Be objective
All the players
Chronology
If someone who knows none of the facts or prior history reads the documentation, he/she will know the whole story by reading the documentation
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15. What should documentation look like?
Be prompt
Document ASAP after the event
Date the documentation
Include dates and to the extent possible, times
Be professional
District / division letterhead
Document facts, not feelings
Use correct grammar, proofread, etc.
Each adult involved should complete his/her own documentation, date, and sign
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16. What should documentation look like?
Explain each and every rule, policy, procedure, and directive violated
Explain consequences of the conduct or future similar actions
Issue specific directives, including remedial action
Offer opportunity to respond
Dated signature of employee acknowledging receipt of documentation
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17. What should documentation look like?
Who: Who was involved? Who witnessed conduct? List each person
What: What did the employee do? What happened?
Where: Exact location of incident/conduct
When: Specifics of when incident/conduct occurred – date, time, etc.
Why: Why is documentation necessary? (because policies, rules, procedures violated)
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18. What should documentation look like: Progressive Discipline
Informal verbal counseling
Verbal Warning Notice
Written Disciplinary Notice
Performance Improvement Plan
Possible suspension
Termination of employment
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19. What should documentation look like: Progressive Discipline
Generally, No:
Immediate danger to self, students, employees
Illegal acts
Big and bad
Still must document!
Generally, Yes:
Competency issues
Management issues
Ask: Can this conduct be corrected?
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20. Documenting one-time incidents
Make calls
Your supervisor, HR
Is there an immediate need to remove this employee?
All witnesses to document
Example: You, assistant, any other witnesses
Document
Who, what, when, where, why
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21. Progressive Discipline
Examples
You find an employee asleep in the break room
Your assistant comes to work late at least 2 days a week
Two employees you supervise cannot get along and argue in front of other employees
An employee is rude to a vendor
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22. Progressive Discipline: Verbal Warning
Use when an employee is:
Experiencing difficulty in work performance
Failing to perform at an acceptable level
Failing to comply with established work rules
1st attempt to correct the problem with informal verbal counseling
Give the employee a description of the problem and corrective action required
Verbal Warning Notice
Beg.: Remember, progressive discipline is for events that are not those, one-time big and bad incidents. These usually occur over a period of time, and the goal at each stage of the progressive discipline is to correct the conduct. Progressive discipline only leads to termination after attempts to correct the conduct have failed.
- There are typically 5 steps to progressive discipline: verbal counseling; written warning; performance improvement plan; possible suspension; and termination of employment.
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23. Progressive Discipline: Verbal Warning Notice
Description of current problem
Ms. Jones found you sleeping during work hours; there is no sleeping during the work day.
You arrive at least 15 minutes late on a regular basis. Specifically, you arrived 15 minutes late on Sept. 28 and Sept Employees must arrive by 7:45 a.m.
I witnessed you and Mr. Weber arguing in front of other employees; you must work together and present a positive working environment.
I witnessed what I considered to be inappropriate behavior when you yelled at a sales representative from A-1 Specialties; we must be courteous to vendors.
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24. Progressive Discipline: Verbal Warning Notice
Corrective action required
You are directed not to sleep during the work day.
You are directed to arrive by 7:45 a.m. every day and follow District policies and procedures in the event you will arrive late to work.
You are directed to not argue with other employees and to present a positive, polite working environment.
You are directed to be courteous to vendors.
If appropriate, cite job description and applicable policy and procedures.
After if appropriate: For example, if an employee is arriving late to work, cite the Standard Operating Procedure section applicable to employees arriving to work on time.
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25. Progressive Discipline: Verbal Warning Notice
Employee’s comments, if any
Ask employee if there is a reason for the conduct, something going on, anything employee would like for you to know – but be careful
Discuss options with the employee
Discuss consequences, if appropriate
Remember the Educators’ Code of Ethics – DH (Local) for all notices, memos, warnings, evaluations
DH (Local) – All District employees
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26. Progressive Discipline: Written Disciplinary Notice
Use when:
the situation does not improve after the employee has received verbal counseling
the circumstances involve more serious behavior such that a written warning is warranted even though a verbal warning has not been issued
Supervisor should meet with employee to:
Discuss the specific problem
Clarify any misunderstandings
Define what must be done to resolve the problem
Written Disciplinary Notice
End: Commissioner of Education has repeatedly emphasized that failure to comply with an official directive is good cause to terminate an employment contract. BUT, if there’s no documentation of the official directive, employee can merely argue that no directive was ever given, and we’re back to a ‘he said, she said’ situation.
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27. Progressive Discipline: Written Disciplinary Notice
Description of Current Problem
A clear statement of the problem area(s)
Previous attempts to deal with the problem
Detail previous attempts to address problem (attach previous verbal notices, memos, etc.)
Explain rationale for this step being taken
Corrections Needed
Detail what change in performance is necessary
Explain consequences for failing to improve
Give specific directives
Corrections Needed: Ensure the employee understands what must be corrected! Be specific.
Give specific directives: Although you want to give specific directives, you also want to be broad enough to encompass similar behavior. For example, if the employee is being warned for cursing at another employee, don’t write in the notice or memo “stop cursing at co-workers.” Rather, consider giving a broader directive such as “the employee must control his temper and avoid unprofessional outbursts and conduct at work.”
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28. Progressive Discipline: Written Disciplinary Notice
Assistance Provided by Supervisor
How will you help the employee succeed?
Employee’s Comment
Allow employee to detail his/her comments
Employee’s signature
If employee refuses to sign the notice, note “refused to sign” on the form and have it witnessed by a supervisor or manager within the division or by an HR representative
Send original notice to HR for retention in employee’s personnel file
After employee’s signature: Do NOT have a peer of the employee witness the notice. Always have a supervisor, manager, or HR rep as a witness.
After send original notice: Should give a copy to the employee and keep a copy in your file.
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29. Progressive Discipline: Performance Improvement Plan
Usually developed after employee has received 3 counseling notices or memos
Goal: to help employee successfully perform his/her job
Employee goal(s)
Specific activities for improvement
Timeline – min of 30 working days; careful consideration of performance and future after 90 working days
Monitoring notes – Progress made toward meeting goal(s)
Date completed / supervisor comments
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30. Progressive Discipline: Performance Improvement Plan
Meetings should be held with employee no less than once per month to review progress
Progress notes should be made to the PIP or provided as an attachment
Review with employee
Supervisor and employee should sign
Forward to HR for retention in personnel file
Explain to employee that during the PIP time, he/she may be discharged at any time if improvements are not evident or performance relapses to old patterns
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31. Progressive Discipline: Performance Improvement Plan
If, at end of plan, employee has satisfied all of the goals of PIP, employment should be continued
If, in supervisor’s discretion, the most important but not all goals are met, employment may be continued and the PIP extended to allow more time to satisfy all goals
If employee does not satisfy the PIP, supervisor should make recommendation to division director, HR director, superintendent for termination of employment
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32. Progressive Discipline: Performance Improvement Plan
Check your district’s policy/employee handbook - usually, an employee working under a PIP is not eligible for:
Promotion
Transfer
Salary actions of any kind
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33. Progressive Discipline: Example
Ericka Employee – secretary
July 28: Ericka failed to relay message to supervisor – informal conference re: job duties
Aug. 17: Ericka failed to set up an appointment and calendar the appointment for a staff meeting – verbal warning notice re: follow all directives, timely set up and calendar appointments, etc.
Sept. 11: Ericka failed to pre-register supervisor for TASB conference – written disciplinary notice
Sept. 28: Ericka failed to relay message from superintendent re: board agenda item for your division – PIP
End: Remember, PIP are usually developed after 3 notices have been given to an employee. Ericka Employee has already received 3 notices, so after the Sept. 28 event, it’s time to put her on a PIP.
Break into groups of 2-3 people once again and using the blank PIP form, develop a PIP for Ericka.
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34. Progressive Discipline: Termination
Generally, two instances:
Failure to improve as directed through the disciplinary process (notices, memos, PIP)
Serious incident in which corrective action is impractical, unwarranted
At-will v. Contract
Check policy/procedures to determine whose approval must be obtained for termination
Recommendation for Termination
Statement of performance/behavior problem(s)
Summary of prior actions
Justification for recommendation
At-will v. Contract: Termination of at-will employees usually requires approval of Superintendent. Termination of contract personnel will be implemented in accordance with state law and district policies, either by termination during the contract term or by non-renewal at the end of the contract term.
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35. Progressive Discipline: Grounds for Immediate Termination
Insubordination; failure to comply with official directives
Conviction of a felony or any crime involving moral turpitude
Falsification of records
Theft of property from co-workers, clients, or District
Threat or assault on an employee, student, parent, or client
Willful destruction of property
Misrepresentation of facts to a supervisor or other District official
Beg.: Remember, the seriousness of a problem will determine the nature of corrective action. In serious cases, a written warning or PIP may be the first step Very serious violations of policy or standards may warrant immediate termination.
Some types of disciplinary problems are so severe that immediate termination is warranted without previous warnings. These behaviors include, but are not limited to:
Falsification of records – including employment application and time sheets or other documents related to the Department’s activities
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36. Progressive Discipline: Grounds for Immediate Termination
Failure to report suspected child abuse
Use of obscene, abusive, threatening language or gestures
Disregarding safety or security regulations and practices
Violation of the District’s nondiscrimination and/or non- harassment policies
Leaving the workplace without authorization
Refusal to assist management in its conducting of an investigation
Possession, use, or being under the influence of alcohol, drugs, narcotic, controlled substances, stimulants, depressants, or similar mind or mood altering substances at a school or on the premises owned or under the control of the District
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37. Evaluations Evaluations: Should track job description
Review your documentation and last year’s evaluation and reference them
Remember: these follow employee and stay in his/her file
Take your time – these should take a lot of time to complete
Be specific and truthful
Should be consistent with other documentation (this could make or break a termination decision)
Evals; be specific and truthful: I can promise you, if you’re ever involved in a grievance or a teacher termination or non-renewal hearing, the employee’s lawyer will look at the employee’s evaluations because 9 times out of 10, the evaluation will state that the employee “exceeds expectations,” they don’t incorporate notices and memos, and the reasons for the discipline or termination/nonrenewal are not supported by the evaluation. You’ve got to be specific and truthful in the evaluations. Don’t go through and check the “exceed expectations” box if the employee does not exceed expectations. Also, it is too rare that the explanation section of evals are left blank. Use this time and take the time to give a true, specific evaluation. That’s what these are for.
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38. E-mails and Computers: Friend or foe?
Check District’s Policy CQ (Local), Employee Handbook, etc. re: acceptable use
What does this have to do with documentation?
First off, is NOT formal, appropriate documentation!
As a general rule, there is no such thing as a private when using District’s system!
Every time you send or receive an to or from an District address, documentation is being created
An is documentation whether or not you print the
It’s documentation whether or not you hit the delete button
Delete does not really mean DELETE / Back-ups
It’s documentation whether or not you intended it to be documentation
It’s documentation whether or not you write it down
Web surfing leaves a trail
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39. E-mails and Computers: E-Discovery
Discovery is the exchange of information among parties in a lawsuit
Almost always includes the exchange of documentation
E-Discovery
Exchange of electronic documentation, including back-up tapes, deleted s, existing s, etc.
Agencies (EEOC, SBEC, etc.); lawsuits; hearings
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40. E-mails and Computers: Examples
Venting to a colleague or friend …in or out of your district
“How much are we paying her? I wish she would just retire already!”
“I wish he would just go back to _ISD.”
“I’m so annoyed at how slow Dave is with getting me the electronic sales reports; he’s so old computers weren’t even invented when he started working here!”
“I don’t understand why we have to accommodate her alleged disability. I wish the Board would just get rid of her so the rest of us don’t have to put up with her.”
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41. Where do I go for help? Board Policies Standard Operating Procedures
Employee Handbook
Personnel Procedures
Job Descriptions
Supervisor
Human Resources
Legal
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42. Some basics Use active voice, not passive voice
Who said what; who admitted what; who acknowledged fault; who directed change in behavior; who agreed to change behavior
Erase these from your vocabulary:
“It was indicated that…”
“It was suggested that…”
“It is understood that…”
“It was stated that…”
Other similar, passive voice, vague statements
Write the notice/memo so that the reader will know exactly what happened in the event
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43. More basics . . . Just the facts
Do not attempt to create a verbatim transcript
Avoid using general statements; give factual details of conduct/event that has caused concern
Do not use hyperbole, sarcasm, or angry words
Keep it simple, direct, concise
Do not use educational jargon; write for a lay person to read
Edit the finished document – eliminate spelling and grammatical errors
Make directives clear, unambiguous, and direct
Don’t leave loopholes or wiggle room
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44. Who cares? Decisions based on documentation
Whether to take action
You, human resources, supervisors, attorney
Grievance hearing
You, grievant (employee), supervisors, attorney, Board
Termination hearing
You, employee, supervisors, attorneys, hearing examiner, Board, Commissioner of Education
EEOC, TCHR, SBEC, Workforce Comm.
You, employee, supervisors, attorneys, agency
Lawsuit
You, plaintiff, attorneys, judge, jury, public
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45. Discipline & Documentation: When is it too late?
NEVER!
It’s never too late to start documenting
Be consistent
Don’t single out specific employees
Be fair, consistent across the board,
with all employees
Be consistent: A lack of consistent discipline and documentation can come back to haunt you. For example, if Leah has received three notices or memos for tardiness and then is discharged, but Brandon has received six notices during the same time period for tardiness but has received no discipline. I can virtually guarantee you that Leah is going to win her sex discrimination case, even if the supervisor had no specific gender bias against Leah, because Leah will be able to prove that she was treated more harshly than her male counterpart. Therefore, it’s important to apply disciplinary procedures fairly and consistently. The best way to determine fairness is to make sure equal discipline is given for similar misconduct.
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46. Topic 3 Best Practices
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47. Best Practices
Begin to prepare for a hearing/grievance at the first sign of problem performance
Document, document, document – on appropriate form – citing applicable policy, SOP, rules
Apply discipline and documentation consistently
Evaluate frankly and honestly
Clearly point out deficiencies and offer help to improve at the earliest possible time
Make directives specific and clear
Afford adequate time for improvement of performance
Create an environment of success
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48. Best Practices
Keep thorough, accurate, contemporaneous documentation of problem employee’s performance and other, job-related conduct
Improvement should be desired and expected, so clearly identify the unacceptable conduct in writing and provide a specific, written plan to correct deficiencies
Insist on competence and recommend termination/nonrenewal of incompetent employees or employees who fail or refuse to follow directives, PIP
Defend your professional judgment confidently
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49. Thank you for your time and attention!
Lena Engel, Attorney
5718 Westheimer Road, Suite 1200
Houston, Texas 77057
Telephone:
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50. IF SPECIFIC LEGAL ADVICE IS SOUGHT, PLEASE CONSULT AN ATTORNEY.
THE FOREGOING PRESENTATION WAS CREATED BY ROGERS, MORRIS & GROVER, LLP.
THIS PRESENTATION IS INTENDED TO BE USED SOLELY FOR GENERAL INFORMATION PURPOSES AND IS NOT TO BE REGARDED AS LEGAL ADVICE.
IF SPECIFIC LEGAL ADVICE IS SOUGHT, PLEASE CONSULT AN ATTORNEY.
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