1. Discipline: Government Employees (that includes you) and the “Special Rules” Puiggari & Associates Michele Puiggari regional 2013

2. WHY? You are the SUPERVISOR Employees aren’t perfect Wrongful Discharge Act Statutory requirements to terminate employee GOVERNMENT employee get JUST CAUSE MACO permission Failure to Effectively Discipline Creates problems can be expensive 2

3. 2 Requirements Need to Work With 1)Wrongful Discharge Act 2)Just Cause— Government Employees 3

4. Wrongful Discharge Act Unlawful to terminate (a) because it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; (b) the discharge was not for good cause and the employee had completed the employer's probationary period of employment (6 months is presumed) ; or (c) the employer violated the express provisions of its own written personnel policy. ISSUE: Still follow rules if terminate during probationary period— Can still have discrimination suit. Act limits damages to employer. But must follow provisions of ACT. Must have Grievance procedure for discipline and give it to employee within 7 days of termination. 4

5. Discharge “Discharge” : resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. Includes constructive discharge 5

6. Just Cause “Good cause" means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. 6

7. WHY-Continued To Suspend/Terminate an Employee MUST show Employee had notice of issues and chance to fix Most Counties have policy that states employees can only be discharged for good cause WHY? This just seems to make it harder to discipline, terminate, get the work done Public Sector Employees Property Interest in Employment Must be demoted, suspended, terminated for just cause only Union Members: Follow CBA (witness if disciplinary, grievance, etc.) 7

8. Why Else Is It Necessary What do you want to know and be able to do when your boss is not happy If NOT written down Did Not happen Credibility question between you and employee Policy is Contract in Montana What is your counties’ policy? Discipline and complaint resolution CBA is contract—must be followed 8

9. Additional Reasons Why MACO Must get permission to terminate employee to ensure coverage if litigation Will require extensive proof just cause was used WHY? Employees have the absolute right to some type of process before the effective date of suspension or discharge. Chance to tell their side Opportunity to fix 9

10. How to Be Effective Use Just Cause ( meets WDA requirements also) Document File at Every Step Best Defense: Call HR BEFORE you hit the wall or you have to start over because MACO will not support termination (you will just be mad, not effective and will be still not be able to terminate them) 10

11. Documenting File YOU ARE THE SUPERVISOR—ACT LIKE ONE. EMPLOYEE IS NOT YOUR FRIEND NO one ever feels discipline is constructive be professional and stick to facts Don’t let employees skate if don’t discipline becomes acceptable. longer you let it happen harder to correct 11

12. Documenting Written Put in facts, not opinions shorter is better Have employee sign (witness if needed) E-mail Way to recap verbals Way to record without seeming to Use statement that if don’t agree let me know Other ideas 12

13. Practical Suggestions Check 7 steps of just cause BEFORE act Run it by another person. HR or other supervisor Before termination: get approval, see if they would be better fit elsewhere in co, check sideways (other depts) Discipline/Termination meeting Supervisor and HR only (no third parties unless Union rep). Do not need to permit attorney even if employee demands. Supervisor communicate decision, HR person everything else. Prepare talking points. Have final pay check (unless policy says next pay period) In person Midweek seems to be best time, Friday is second choice. End of day. Never prior to major holiday if possible Dignity, respect and be compassionate. Keep it short. Treat them the way you would want to be treated. 13

14. Just Cause Definition: Is the Proposed Disciplinary Action Firmly and Fairly Grounded Your opinion is not enough! If it is not written down it did not happen 14

15. How Establish Just Cause Use 7 Step Process to Analyze whether discipline is for Just Cause 7 Steps are practical and effective way to determine if proposed disciplinary action is firmly and fairly grounded 15

16. 7 STEPS Notice Reasonable Rules & Orders Investigation Fair Investigation Proof Equal Treatment Penalty 16

17. Step 1-NOTICE Do they know the rule (what is expected) How do they know rule (orientation, e-mail etc.) Is it documented (signature page, receipts) Employer’s burden to prove Have they been told consequences of his actions? Verbal, written warnings (signed by ee or witness) “I acknowledge receipt of a copy of the foregoing warning. My signature does not mean I agree with the discipline”. 17

18. Step 2- Reasonable Set of Rules Is Rule or order reasonable? orderly, safe operation business-expected performance Is Rule or order Relevant to co. goals. What about these rules Dress code hair length, short skirts (public or not) Can’t criticize department Safety clothing 18

19. Step 3 and 4-Fair Investigation Before administering the discipline Investigate: always talk to employee, witnesses if any (other employees, customers, documents, photos) did they in fact violate or disobey a rule or order? Be thorough: Gather all facts. What would you want employer to know if it was you. Be timely Don’t have immediate supervisor do investigation Be objective. If you can’t be have someone do investigation that can be! 19

20. Investigation Class Problem Employee asks for FMLA leave. 3 weeks later manager goes to HR and wants to discipline employee for performance issues: late on subdivision plan approvals and yelling at subordinates. Employee has been in job for 3 years all good evaluations. What do you do, what do you want to know 20

21. Step 5-Proof of Offense Is there substantial evidence to prove guilt? Are your conclusions unbiased and based on facts Use grid Was investigation done in good faith This not a criminal case. 21

22. Step 6-Equality Have the rules or orders been handed out evenly and without discrimination? Rules must be applied justly Are all employees operating under the same set of rules. Are all employees equally in order to apply the rules when administering discipline i.e. don’t blindly apply same rule to all situations - managers/supervisors are expected to exercise judgment ---So can impose lesser discipline on model employee and greater discipline on problem employee for same offense. If you have the appropriate documentation in the file—you can impose more serious discipline. 22

23. Step 7-Appropriate Discipline Did the punishment fit the crime? The level of discipline issued must be reasonably related to 1) the severity of the proven violation and 2) the employee’s service record. 23

24. Class Problem Employee in DA’s office Running for Justice of the Peace While at work, disruptive, lies, doing campaign work while at work, No discipline in past or now (because employee would have been a judge DA had to go before) After looses campaign, supervisors disciplines, employee grieves discipline Says it is because she ran for office. What issues do you see? What do you want to know? What should supervisor have done? What could supervisor have done? 24

25. Just Cause or Not? A “no” answer to one or more of the questions (Steps 1-7) means that just cause either was not satisfied or at least was seriously weakened in that some arbitrary, capricious, or discriminatory element was present. 25

26. Actions If Have Just Cause Discipline employee If Do Not Have Just Cause Establish Why and remedy 26