Progressive Discipline

22 Progressive Discipline CHAPTER OUTLINE Before Discipline—Protecting the At-Will Rights of the Employer ........................................... 385 Before Discipline—Managing the Right Way ............................................................................. 385 Communication and Culture ...................................................................................................386 Clarity of Expectations .............................................................................................................386 Coaching as a Managerial Style ...............................................................................................387 Attentiveness to Employee Performance and Well-Being .....................................................388 Influence of Parent-Organizational Culture ...........................................................................388 Mental and Emotional Stability of Managers .........................................................................389 Early-Warning Conversations ...................................................................................................389 Controlling Biases and Prejudices ............................................................................................390 Employee Assistance Programs ................................................................................................391 Before Discipline—Legal Considerations .................................................................................... 391 Stages of Progressive Discipline ................................................................................................. 393 Coaching ...................................................................................................................................394 Reprimand ................................................................................................................................395 Suspension ................................................................................................................................396 Termination ..............................................................................................................................397 Performance Improvement Plans ................................................................................................ 401 Tips for Keeping Notes and Records ........................................................................................... 402

Discipline can be defined as an attribute demonstrated by employees that allows them to meet or exceed the expectations of their employers. A person who is disciplined is one who is in command of his own behaviors, emotions, and state of well-being. For example, a 25-year-old man who awakens to his alarm clock at 5 o’clock in the morning to exercise despite being out late with friends the night before is demonstrating great discipline— doing what he knows to be in his best interest even when it is unpleasant or burdensome. In the workplace, employees demonstrate discipline when they choose to meet their responsibilities even when they’d rather not. Certainly, good management practices play a critical role in motivating employees to be disciplined and focused even on their bad days, but there is only so much managers can do.

HR Management in the Forensic Science Laboratory. https://doi.org/10.1016/B978-0-12-801237-6.00022-1 © 2018 Elsevier Inc. All rights reserved.

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For managers, the experience of leading and motivating employees is stressful enough, but rarely as much as when the performance of an employee is not meeting expectations—when employees are undisciplined. Without exception, all employees at some point will recognize, on their own, that their levels of performance must improve and will therefore self-correct. In other instances, just the slightest nudge or word of encouragement by a manager can be sufficient. But in the most concerning situations, managers may have no choice but to engage a process known as progressive discipline in which managers select methods of corrective intervention that are fair and proportionate for the problems at hand. Because progressive discipline is such a serious matter with potential legal consequences, the options made available to managers are usually set forth by documented policies and procedures. This chapter covers what is among the most challenging and disheartening tasks performed by managers—informing employees that their performance is substandard and designing plans for improvement. In the worst situations, the relationship with an underperforming employee may be severed permanently through termination or firing. The following is a list of the most common stages in a progressive discipline policy: • • • •

Coaching or counseling Reprimand Suspension Termination

Whatever stage or outcome is deemed appropriate, when employees fail to meet expectations with subsequent disciplinary action being taken, they will likely experience strong feelings of discouragement, disappointment, and even panic. Managers with sufficient knowledge and skill, however, can help employees recover the sense of confidence and dignity that is sometimes lost when disciplinary action is taken. In this regard, the primary goal of progressive discipline is to make struggling employees whole and retain them for continued employment. Unless there is some form of gross misconduct— behavior that is so egregious or damaging that continued employment is not a reasonable option—managers should always administer progressive discipline with the intent of helping employees function at their best.

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Before Discipline—Protecting the At-Will Rights of the Employer The term at-will is used to describe the right of a person to severe her employment at any time for any reason. It also refers to the right of an employer to do the same, with or without cause, as long as the reason is not illegal. If an employee, however, works under a contract such as a collective bargaining agreement, there are likely provisions governing how and under what conditions an employee may be terminated. Without such a contract, the employee is considered at-will and may be fired for any reason at any time. This is an important protection for employers who, from time to time, may find it necessary to immediately terminate an employee for operational, financial, or disciplinary reasons. If not documented properly, however, a laboratory’s progressive discipline policy and procedures might be construed as contractually obligating the laboratory to follow the stated disciplinary procedures before terminating or demoting an employee. Particularly in instances of gross misconduct, this restriction can have serious consequences. For this reason, it should be made clear that progressive discipline policies and procedures are not contractual but rather are in place as guidelines, subject to managerial discretion when responding to misconduct or substandard performance.

Before Discipline—Managing the Right Way The administration of discipline is rarely an enjoyable experience, but it is made almost unbearable when current management practices and organizational cultures are dysfunctional. Employees are understandably insulted when they are held accountable for substandard performance while their managers seem not to hold themselves accountable for their own shortcomings. This inflammation of employee resentments can severely limit the capacity of managers to produce positive change. Therefore, even the most robust systems of progressive discipline must be underwritten by a supportive organizational culture and competent management practices. This of course begins with having a clear understanding of what management really is. In the opinion of this author, it is not possible to manage people. People manage themselves. For example, when the director of a forensic science laboratory issues a directive to the latent print unit, the employees of the latent print unit choose to follow the directive because the alternative is too risky; they are managing themselves. Yes, the directive issued by the laboratory director is very motivating, but it does not force anyone to do anything. Every employee behavior is a choice. Therefore, the focus of management must be to create or optimize the conditions in which people work so that they make the best choices. Then, with the right conditions in place, employees can be coached and educated about how to make the right choices in those conditions. This section of this chapter, therefore, is a sort of digression that allows readers to think about some basic leadership and managerial priorities that will hopefully minimize or

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even eliminate the need to correct substandard employee performance through progressive discipline. This, of course, is not intended to take the place of the many resources available to managers seeking to improve their leadership and administrative competencies, but they are priorities valued by the author based on many years of practice and leadership in forensic science laboratories.

Communication and Culture Some questions that all managers should ask from time to time are: • • • • •

What behaviors and attitudes does our culture promote and reward? Do we give our employees the information they need to perform at their best? Is what we expect of our employees clear and reasonable? Is what our employees expect of us clear and reasonable? What opportunities do we all have to make this a better place to work?

In the daily chaos that seems to pervade the work environments of many forensic science laboratories, it is easy for managers to let their guard down—to ignore the importance of communication and culture as the primary factor in motivating high levels of employee performance. In the direct experience of this author, many managers working in today’s forensic science laboratories are spending too much time on tasks and responsibilities that have nothing to do with leading, coaching, and empowering employees. As a result, employees are deprived of the support needed to meet their potential. By asking the above questions and thinking carefully and honestly about the answers, managers gain a more accurate perspective on the physical and mental conditions in which people are working each day. All managers in all forensic science laboratories must make communication and culture their top priorities. Information must flow freely and generously. Attitudes must be constructive. Management practices must encourage the best possible performance among all employees. Anger, resentments, and distrust must never be allowed to compromise the employee-employer relationship. By ensuring adequate communication and nurturing an organizational culture that incentivizes the very behaviors expected of employees, administrators of forensic science laboratories can create the conditions in which competent employees can be expected to perform to everyone’s satisfaction.

Clarity of Expectations If we agree that employment is a relationship, then we can agree that all expectations of this relationship must be clear and unambiguous. There should be no expectations placed on either employees or employers that are not clearly understood or periodically discussed. Employers, however, are held to a higher standard because they have the authority to administer discipline when certain standards of performance are not being met by employees. But whenever employees are being held to a standard, whether that standard is implied or expressed, they must be aware of it. And if certain standards are more

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important than others, they must be aware of this too. Among the most frustrating circumstances encountered by employees is not knowing exactly what is expected of them. A common cause of ambiguity in organizations, including forensic science laboratories, is inconsistency between stated and unstated priorities. On the one hand, for example, laboratory administrators may express the importance of producing accurate and reliable results. On the other hand, they may also express dissatisfaction with the productivity of some employees. If not handled carefully, the stated expectation of quality may appear to conflict with the unstated expectation of productivity. There are countless other examples of where the expectations of managers appear to be in conflict. The best way to ensure an understanding of work expectations is to communicate them clearly and specifically. If they are not, managers should hesitate from initiating progressive discipline until it is certain that employees know what is expected of them.

Coaching as a Managerial Style Coaching is a method for interacting with people in a way that maximizes their potential. It opens doors that were previously thought to be closed, and it removes barriers that were standing in the way of personal and professional progress. There is a quality and depth of interpersonal communication that is enjoyed through coaching that is not enjoyed through less engaging styles of management. Managers who live by the directive often die by the directive. Manipulating employees simply by exerting authority does not— and cannot—maximize their performance. And as employees lose their faith in the abilities and motives of their leaders, they eventually become disengaged resulting in declining performance. Too many employees then become the recipients of disciplinary action for reasons that have more to do with weak managerial practices and dysfunctional organizational cultures than with incompetence or lack of professional ability. Managers who can encourage, inspire, motivate, and enable their employees through coaching will invariably produce conditions that will maximize employee effectiveness. It then stands to reason that the need to administer discipline will become minimized proportionately. Coaching helps employees to become aware of their surroundings, responsibilities, opportunities, and abilities. And it often involves asking employees questions about relevant topics far more than it does issuing directives. For example, an authoritarian manager may confront a habitually tardy employee by saying I am tired of your late arrivals, you need to get to work on time or I’m going to have to write you up. Conversely, a supervisor with a coaching style will want to both correct the behavior and expand the employee’s awareness. A coaching supervisor, therefore, may initiate a needed conversation by asking How do you think your late arrivals affect our laboratory and your reputation? This, of course, is not to suggest that employees bear no responsibility in building and maintaining self-discipline—even when managerial practices are weak. Indeed, they do. But little talent is required of any manager whose efforts to influence people are based solely on the exercise of authority. This style of management is rooted in a deep sense of

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entitlement, the belief that each employee owes their managers unconditional respect and conformance simply by virtue of the manager’s rank within an organization. As a result, the predominant managerial style places a high premium on the issuing of directives and the exerting of authority, neither of which bring long-term value to an organizational culture.

Attentiveness to Employee Performance and Well-Being Progressive discipline has greater legitimacy when managers maintain a sense of awareness of the overall performance and well-being of their employees. True to the coaching style of supervision, managers that are attentive, curious, and inquisitive about the goings-on of employees will generally be perceived as more informed. When the time comes that progressive discipline is necessary, the well-informed manager will have more credibility. As a result, any plans or strategies to improve the performance of an employee will be taken more seriously and will therefore be more likely to produce the desired outcomes. Employees, however, are rather observant. They know if their managers are aloof or disconnected or, perhaps, just don’t care. When managers seem to only come out of their hibernation when things go wrong, it is impossible for them to earn and maintain the trust and respect of their employees. For progressive discipline to be effective, managers must have credibility and legitimacy. They must be informed and aware. Managers who earn the reputation of being attentive and engaged are well-positioned to correct substandard employee performance when necessary. Those who don’t will find the administration of progressive discipline to be an awkward and embarrassing exercise.

Influence of Parent-Organizational Culture Administrators of forensic science laboratories should be watchful for inconsistencies between the expressed and implied cultural priorities of their laboratories and those of their parent agencies. Most forensic science laboratories in the United States fall under the authority of a parent organization, such as a police agency, whose primary function is not forensic science. Such parent organizations have their own cultures, values, and priorities. When they differ from those of their laboratories, whether intentionally or not, tensions can arise that make it challenging for employees to understand what behaviors are truly valued. Scientific laboratories, for example, require employees to be thoughtful, methodical, and reserved in their communications. In a parent organization that tends to value assertiveness and the projection of confidence, laboratory employees may feel anxious and out of place. Striking a balance between the cultural priorities of a forensic science laboratory and its parent agency can be achieved through mutual understanding, communication, and education. This is important because any progressive discipline applied in the laboratory will likely require parent-agency approval and involvement to some extent. Any conflicts of culture will only detract from the credibility and legitimacy that are needed to effectively correct substandard performance. Too many forensic laboratory professionals know

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what it feels like to be the unappreciated step-children in their parent organizations. The effect of this phenomenon must be taken into consideration whenever progressive discipline is administered.

Mental and Emotional Stability of Managers Perception and judgment are influenced by one’s mental and emotional states. The ability of a manager to accurately observe an employee’s performance and judge it as being either satisfactory or unsatisfactory requires a reasonable degree of personal fortitude. The realization that an employee is not meeting expectations can be mentally and emotionally taxing for a manager. Consequently, if, for whatever reason, a manager is privately coping with mental or emotional burdens that are clouding his judgment, it will be more difficult for him to objectively assess the performance of a struggling employee. And it will be even harder for him to take actions that are reasonable and proportional to the problem at hand. It is not uncommon for even the most competent managers to overreact or underreact to an emerging situation. When they do, it is usually because they are fatigued by the mental and emotional stressors with which they are coping at the time. No one is immune from the stresses of life. But when a manager deems it appropriate to administer progressive discipline for substandard performance, there is an elevated level of responsibility for the manager to reflect on her own mental and emotional states to determine if her perceptions are indeed reality. The following are some strategies that managers can adopt: •

•

•

•

Take time to reflect, if possible. The underperforming employee can be told of the manager’s concerns, but it is not always necessary to act quickly unless circumstances require it. Seek the counsel of a mentor. Talking through difficult issues is a great way to organize one’s thoughts and bring clarity to otherwise murky situations. Be careful not to violate an employee’s privacy, but be open and candid about what is happening and why it may require corrective action. Consult with HR. Human resource management experts can help a concerned manager understand the options that are available and how a personnel problem can be fixed with the least amount of disruption to the laboratory. Step away from the workplace. Especially in the most difficult circumstances, it can be helpful to go for a walk or simply get out of the laboratory for a while to think things over. A change of scenery can be beneficial by creating some separation between the manager and the problem at hand.

Early-Warning Conversations Before progressive discipline becomes a viable option to address substandard performance, there is great value in heart-to-heart conversations between managers and their employees when something seems to be wrong. Often, a good chat goes a long way toward

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revealing a manager’s concerns and giving employees a chance to self-correct before progressive discipline is administered. As much as possible, managers should try to build quality relationships with their employees so that these kinds of conversations can be had if or when they become necessary. One reason why early-warning conversations are so valuable is because substandard performance does not always occur suddenly. In many instances, employee performance deteriorates over time. And it is not always possible for managers to immediately recognize that their employees have taken a turn for the worse. Even if managers could ensure early recognition of substandard performance, it would not necessarily mean that managerial intervention is required at that point. Unnecessary or premature intervention can be as damaging as delayed intervention or no intervention at all. So, one of the great challenges for any manager is to be attentive and engage her suspicions at a time that is appropriate. Early-warning conversations help managers buy time, giving them an opportunity to address problems without the awkward formalities and elevated responsibilities that come with progressive discipline.

Controlling Biases and Prejudices Human beings are programmed to make fast judgments. Indeed, this ability has assured the survival of our species in a dangerous world. All of us have opinions that have been conditioned over time. They result from our upbringing, our environment, and our life experiences. In many cases, these opinions are reasonable and constructive. For example, it is reasonable to be suspicious of a man wearing a long black trench coat outside an elementary school on a hot summer day. Our ability to make assumptions reduces the time needed to react to a perceived threat. But our personal opinions can also be unreasonable and cause us to cast unfair judgments on other people when they are not deserved. In an organizational setting, employees and managers are not afforded the same leniency when personal biases and prejudices are found to be inaccurate. Especially in situations where an employee is judged to be performing poorly, any biases or prejudices on the part of the manager can contaminate her ability to accurately assess whether an employee is meeting expectations or not. Managers, for instance, that place too much stock in gossip and third-hand accounts may develop judgments about employees that are not based on reliable evidence. In the worst scenarios, personal biases and prejudices can be illegal. Managers that have unhealthy attitudes about people’s race, gender, national origin, age, or religion are vulnerable to making decisions or taking actions that illegally disenfranchise employees. The consequences can be catastrophic and expensive. For managers to accurately observe and interpret the performance of employees they must be free of inappropriate biases and prejudices of any sort. As much as possible, progressive discipline must be based on what is real and factual, not what is believed or suspected. It is certainly appropriate for managers to discuss feelings and suspicions with employees in a conversational setting. And if such conversations occur, care must be taken to ensure that inappropriate biases or prejudices do not cause employees to feel insulted.

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But once the decision is made to administer progressive discipline, the stakes are even higher. Personal judgments and assumptions that are not based on fact cannot be included in the calculus. If they are, it will damage the credibility and legitimacy of the manager’s authority.

Employee Assistance Programs In some instances, poor employee performance may be fueled by serious personal problems for which the employee would be wise to seek professional assistance. Mental and physical health problems can arise from disease or difficult life experiences that are beyond an employee’s capacity to correct on his own. Unfortunately, the employee may cause considerable damage to himself, his career, and his coworkers before he realizes that he needs help. The need for professional support does not relieve employees of their responsibilities to their employers; however, employers can opt to lighten or forego any progressive discipline in those instances where substandard performance is being caused by a personal hardship and/or when the troubled employee agrees to seek professional assistance. Except in rare circumstances, employers cannot force employees to seek professional help, but they can demand that performance expectations be met and suggest that professional help may be a smart way to ensure that it happens. Many of today’s employers provide a valuable benefit called an Employee Assistance Program where employees can privately seek help when coping with a personal hardship. Such programs provide free access to counselors, therapists, and other professionals who are qualified to speak with employees who are in distress. When managers suspect that substandard performance is being caused by a personal hardship, employees can be reminded of the employee assistance program as an option. In the meantime, managers must focus on the performance of employees and cannot assume that the employee will actually seek help or that the help will be successful in correcting any problems. Even as an underperforming employee is seeking professional help, it may be necessary to proceed with progressive discipline.

Before Discipline—Legal Considerations Employment is a contract of sorts, giving employees a right to occupy their positions within the laboratory. Increasingly, labor litigation has demonstrated that our courts view jobs as property that cannot be taken away without due cause. Employees have rights and these rights must be honored. Among these rights are protections from being denied terms and conditions of employment for reasons that might later be judged as illegal. The decision to administer progressive discipline can have serious legal implications for three reasons: (1) Progressive discipline results from a judgment that an employee is not meeting expectations. It can also be argued that it causes a temporary change in the employee’s

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terms and conditions of employment. Consequently, if the judgments resulting in progressive discipline are unfair, the laboratory is exposed to considerable risk. (2) Progressive discipline sometimes results in adverse employment decisions—such as demotion, suspension, or termination—that affect the well-being and livelihood of employees. This causes employees to lose something of monetary value. If it is for unfair or illegal reasons, then employees may have grounds to pursue legal remedies. (3) Progressive discipline sets a precedent against which future actions will be judged. When employees take legal actions against their employers, they will often present as evidence any inconsistencies in how progressive disciplinary actions were taken. These inconsistencies can bolster claims by employees that disciplinary action for substandard performance was neither proportional nor comparable to past actions. Said another way, progressive discipline marks an important and often uncomfortable change to the nature of the employee-employer relationship. With the administration of progressive discipline, targeted employees will feel that something valuable has been taken away, and indeed it has. One’s sense of job security, the trust of one’s employer, freedom to exercise discretion, and one’s reputation in an organization can feel lost. And whenever a person feels that something of value has been taken away, it is natural to seek restitution by holding the taker accountable in some fashion. In some instances, legal action is a way for employees to hold their employers accountable and to seek compensation for any damages. Even if the employer is victorious, it will likely come at great expense. The types of legal actions that can be taken as the result of progressive discipline are limitless. It is not possible, therefore, to describe them all here. What can be discussed, however, is the importance of being fair and consistent in the treatment and management of employees at all times. Legal liability in employment matters, although serious, is not remarkably complex. The exposure of an employer is worsened when a credible argument can be made that the employer deprived an employee of the opportunity to succeed, reacted unreasonably to what it saw as substandard performance, or failed to administer progressive discipline with competence and fairness. Moreover, in those instances when an employer violates its own policies and procedures, the chance of winning a legal contest becomes remote. Administrators of forensic science laboratories, however, are cautioned to not have excessive reliance on attorneys to make managerial decisions. Attorneys exist to counsel clients and represent them, when applicable, in legal disputes. Attorneys are not necessarily well-versed in matters of employee morale, organizational culture, and strategic decision-making. What may be a legally prudent decision or course of action may have a detrimental impact on employee engagement and the long-term functioning of the laboratory. Many battles have been waged between attorneys and HR professionals over how to proceed in a personnel crisis, and because legal losses can be so expensive, attorneys often win in the end. But strong leadership requires knowing when a legal advantage comes at an unacceptable cost to the organizational culture.

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In the experience of this author, for example, labor relations attorneys will often counsel employers to not reveal the reasons for an employee’s termination, leaving the existing staff feeling confused, vulnerable, and uninformed—and even a bit insulted. This advice is based on the desire to protect the employer from further legal action resulting from a violation of the terminated employee’s privacy, libel, or slander. But telling employees that a member of their team has been let go without explaining the reasons for the dismissal can have catastrophic effects that may take years to subside.

Stages of Progressive Discipline When it has been determined that progressive discipline must be administered, it is because an employee is either not meeting expectations or has engaged in behavior that could be described as misconduct. At this point, interpersonal communications between the manager and the employee are no longer sufficient to address the problem, and there is no evidence to suggest that the employee will self-correct in a reasonable period of time. Progressive discipline is now the only option available to the manager and it must be handled with skill. Human resource management staff should be consulted during this process as they will be able to coach the manager in deciding what steps should be taken and how.

Progressive discipline is a rather standard procedure that varies little from organization to organization. It is comprised of a series of stages or steps through which an employee may progress before finally being terminated, if it comes to that. The following is a list of the most common stages in progressive discipline: • • • •

Coaching Reprimand Suspension Termination

A manager may choose to begin progressive discipline at any stage as long as it is proportional to the problem being corrected. If, for example, an employee has engaged in gross misconduct such as threatening another employee with physical violence, immediate termination is justified. If it is discovered that an employee violated policy by using a laboratory credit card to purchase alcoholic beverages while attending a professional conference, progressive discipline may begin with a verbal or written reprimand. If a manager notices that an employee’s productivity has slumped in recent months and did not

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improve after a couple brief conversations with the employee, progressive discipline may be initiated with some formal coaching. The administration of progressive discipline depends heavily on managerial discretion. How it is initiated and escalated must be appropriate for the problem. A basic rule-of-thumb is that managers should strive to be reasonable at all times. One way for managers to assess reasonableness is to imagine that they are explaining themselves and why they took the actions they did to 1000 knowledgeable people. If the vast majority of those 1000 people would likely agree with the manager’s actions, or at least find them to be reasonable, then it is likely the manager has administered progressive discipline with competence. This is an effective technique, utilized by this author on many occasions, to consider the efficacy of progressive disciplinary action that has or will be taken by managers.

Coaching Coaching is an interpersonal empowerment method that aims to produce two critical outcomes: encouragement and clarity. Although it is not necessarily appropriate for addressing misconduct, coaching is an effective way to help employees understand what is expected of them. Through effective coaching, a manager can: • • • • • •

Help an employee become more self-aware Learn why the employee is underperforming Communicate confidence in the abilities of the struggling employee Make suggestions for how performance can be improved Identify opportunities to better support the employee Motivate the employee to improve

During a coaching session, contrary to the more authoritarian style of management, a manager will ask several questions designed to help the employee think about her performance and whether it is meeting expectations or not. Imagine, for example, a drug chemist whose productivity has declined over several months to the point that her production is not even half the average of her coworkers. A manager could, conceivably, coach the employee with great effectiveness simply by asking the following questions: Do you know why I asked to speak with you? Would it be okay if I ask you some questions about how things have been going for you in the lab? Can you tell me how your productivity compares to your coworkers? Why does our LIMS data show that you are producing less than half the average for all employees? Your productivity has been higher in the past, what changed? Do you believe you are capable of performing better? How can you and I work together to make sure your productivity increases to a higher level?

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What do you think is a reasonable goal for us to set over the next 6 months? Would it be okay if you and I meet once a week to talk about how things are going? Will you please come see me whenever you feel like you are struggling? It is through the asking of questions that managers wield the most power to influence employee performance and behavior over the long term. By answering those questions, employees are forced to think about work expectations and the many factors affecting whether they meet those expectations or not. This helps employees build a degree of self-awareness that does not come from simply following directives. Through coaching and asking probing questions, the manager becomes a thought partner. And as the employee becomes more aware and confident in her ability to improve, her respect and appreciation for her manager will increase. If, however, a temperamental employee does not wish to partner with his manager in a coaching session, or if the employee is resistant or defiant, it is appropriate for the manager to immediately issue a verbal reprimand, assuming this is permitted by the progressive discipline policies of the laboratory and its parent agency. Under no circumstance is it excusable for an employee to impede the legitimate efforts of a manager who is trying to do her job. Finally, it is up to the manager to decide what duration of time is reasonable for coaching to produce the expected improvements in performance. This will depend on the urgency of the situation and the confidence of the manager in the ability of the employee to make the needed corrections. Again, the expectations to be met and the duration of time in which corrections should be made must be reasonable. And if coaching fails to produce the desired outcomes, formal reprimands may be necessary.

Reprimand A reprimand is an official statement, given verbally or in writing, that admonishes or censures an employee for misconduct or failure to meet expectations. It is intended to serve as a warning to the employee that any failure to correct substandard performance will have serious consequences. Many organizations, in fact, do not issue reprimands, per se, electing to simply call them what they really are—warnings. The following is an example of a verbal reprimand that might be given by a manager to an employee with attendance problems: Steve, because of the repeated problems we’ve been having with your not showing up for work on time, I am issuing a verbal reprimand and requesting that you immediately comply with our attendance policies. Our laboratory specifies a start time of 8:00 AM for all employees. You have repeatedly arrived to work later than 8:20 AM despite our past discussions on the matter. If you again violate our attendance policy in the next 6 months, I will issue a written reprimand. If the behavior continues after that, your employment at our laboratory could be in jeopardy. For some employers, verbal and written reprimands are separate and distinct stages of progressive discipline where a verbal reprimand will proceed a written reprimand in the

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sequence of corrective actions. When an employee gets written up, as the phrase suggests, he is being reprimanded in writing, which is seen as more severe than simply a verbal reprimand. However an organization decides to reprimand employees, assuming they do so at all, reprimands provide an opportunity for the substandard performance of employees to be recognized and communicated formally. Whether verbal or written, reprimands should: • • • • •

Be succinct Specifically state any work expectations that were not met Specifically state any misconduct that occurred Refer to any incidents or disciplinary actions taken in the past Warn the employee that future instances of a similar nature will have serious consequences

It should be noted that verbal reprimands, specifically, are somewhat controversial and have been criticized by some leadership theorists, including this author. It is traditionally presumed that verbal reprimands should precede written reprimands in the progressive discipline process because written reprimands become a part of an employee’s personnel record and are therefore seen as more severe. But as employers become more aware of the risks of litigation resulting from the administration of progressive discipline, it has become commonplace for even verbal reprimands to be documented by managers and included in employee personnel records. As a result, there is often little or no functional difference between a verbal reprimand and a written reprimand. In the interest of preserving the credibility of managers, it is appropriate to simply provide for a reprimand or warning stage of progressive discipline without making the distinction between those that are verbal and those that are written.

Suspension The temporary excusal of an employee from work as the result of misconduct or failure to meet work expectations is called a suspension. A suspension will typically last a specified period of time (1, 5, 10, 30 days) as prescribed by the employer’s progressive discipline policy. A suspension may be administered for one of two reasons: • •

The employer wishes to remove an employee from the workplace while an investigation is conducted. The employer decides that a suspension is a necessary action to address substandard performance or misconduct.

A suspension that is administered for the purpose of conducting an investigation will typically allow the subject employee to be paid while away from work. On the other hand, a suspension that is administered as a form of punishment for substandard performance or misconduct will be unpaid. Generally speaking, it is not always necessary to include suspensions as part of an organization’s progressive discipline process. In fact, there can be risks to employers who use

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suspensions as a form of discipline. Ideally, suspensions should only be given to employees whose outright termination is already justified but, for whatever reason, is not necessarily desirable. To the extent that suspensions are used, however, suspensions should serve as final warnings. If an employee’s behavior cannot be corrected through coaching and reprimands, it is unlikely to be changed through suspension. Additionally, the availability of suspensions as an option in the progressive discipline process can be perceived as a contractual requirement, dissuading employers from terminating employees who should no longer remain employed. This creates an assumption that suspensions must always precede terminations, giving ammunition to terminated employees who claim that their firings were unjust. And because many of today’s organizations have administrative leave policies through which employees can be sent home during an investigation, the need to suspend employees is limited at best. For a forensic science laboratory, however, the stakes are a bit higher. The suspension of an employee can become a legitimate evidentiary issue in criminal or civil trials where the employee will serve as an expert witness, especially when the suspension is administered for behavior that calls the employee’s honesty or integrity into question. If misconduct or substandard performance is so severe that a suspension is justified, it may be better to simply terminate the employee. Under no circumstance, however, should a suspension be administered without the expert assistance of HR and legal counsel. Because the suspension will be perceived as an affront to an employee’s reputation and will likely result in lost wages, there is an elevated risk of subsequent legal action being taken by the aggrieved employee.

Termination Although the primary goal of progressive discipline is always to rehabilitate and retain an underperforming employee, there are instances when this is not possible. The subsequent, permanent removal of employees from the jobs they occupy is called termination, the most severe action that can be taken from the administration of progressive discipline. In some instances, termination is the final step during what can be a long and arduous effort to correct substandard performance. In other instances, however, gross misconduct or behavior perceived as immediately disqualifying a person from employment may result in termination without any other stages of the progressive discipline progress being engaged. Regardless of why it occurs, termination represents the taking away of an employee’s right to a position and, therefore, depriving the employee of his wages, benefits, and means of subsistence. Termination is a scary, life-changing event for an employee and warrants the utmost consideration, caution, and documentation.

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Because termination is the workplace equivalent of the death penalty, it is critical that a comprehensive review of all evidence and existing personnel records take place before the final meeting with the employee. In their textbook The Progressive Discipline Handbook, published by Nolo in 2007, Margie Mader-Clark and Lisa Guerin recommend the following considerations when preparing for the termination meeting: • • • • • • •

Make sure you know the facts Check the employee’s personnel file Review company policies Consider past statements to the employee Examine how other employees have been treated Consider the timing Get a second opinion

A termination must not proceed unless it is fair and reasonable. The steps outlined above can help laboratory administrators make one final assessment of the appropriateness of the impending termination. As Mader-Clark and Guerin suggest, it is critical that a laboratory understand all the facts surrounding the termination and how it will affect the workplace. There should be a final review of the employee’s personnel file, which should include all records associated with the employee’s substandard performance or misconduct. The existing policies and procedures of the laboratory and its parent agency, if applicable, should be reviewed to ensure that they were followed. Disciplinary actions taken for other employees in the past should also be reviewed and considered to ensure that the impending termination is not out of the ordinary or in conflict with past organizational practices. At such time that termination is decided, there is a sequence of steps or exit plan that will be executed. The primary goals are to finalize the termination, respect the terminated employee’s dignity, minimize the emotional trauma suffered by other employees, and allow the employee to leave the workplace without incident. The following list describes these steps in more detail: Cancel access to voicemail, secure facilities, and network access—Because of the security sensitivities inherent to forensic science laboratories, the employee’s access to sensitive information or secure locations in the laboratory should be made inactive prior to the termination meeting. Although this may seem a bit overkill for an employee that poses no threat, it is a reasonable precaution to take. Access to voicemail, secured areas, and the laboratory’s IT network should be closed. Prepare the termination letter or memorandum—A brief letter or memo should be prepared, on official letterhead, that terminates the employment of the person being let go, effective immediately or at a prescribed date and time. In this letter, the reason for the termination should not be stated. And because of the potential legal significance of the letter, it should include no criticisms or compliments. Its only purpose is to officially end the recipient’s employment and provide whatever information he needs

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to retain existing benefits. For example, the employee should be given instructions for how to collect a final paycheck along with the name and contact information of a person in HR from whom the employee can seek assistance if necessary. The employee should also be informed of his rights and responsibilities for retaining medical insurance under the Consolidated Omnibus Budget Reconciliation Act (COBRA). If it has been determined that the employee is entitled to a severance package, this can be summarized as well. Large organizations with strong HR support will likely have standardized templates for drafting termination letters. Hold a pretermination meeting—Prior to meeting with the employee, there should be a pretermination meeting that includes, where applicable, the employee’s direct supervisor, laboratory director, HR representative, and legal counsel. The purpose of this meeting is to prepare the comments that will be verbally communicated to the employee. All participants must be reminded of the meeting’s objectives and the need to be brief and calm. Any inappropriate or conflicting statements can be used against the laboratory. Call the employee to the termination meeting—The manner in which the employee is summoned to the termination meeting depends on a number of factors. Among these factors is whether the employee is aware of the impending termination or not. Also open for consideration is if the employee should be permitted to have a witness or legal counsel present; although it is generally not necessary, there may be instances where it is deemed advisable. Regardless, at such time that the laboratory’s representatives are in place and ready to hold the termination meeting, the employee should be called or summoned. Hold a brief termination meeting—The termination meeting should be held in a comfortable office or conference room with tissue paper available if needed. The employee should be invited to sit, after which he should be politely but immediately told that his employment is being terminated. A copy of the termination letter should be given to him at this time. The reason for the termination will likely be known but, if it is not, the manager can broadly refer to previous misconduct or unsuccessful attempts to correct substandard performance. If the employee becomes upset and argumentative, it is important to be understanding and compassionate, but it is equally important not to respond with specifics. Once the decision to terminate has been made, there is no need defend the decision or argue its finer points. In the opinion of this author, a termination meeting should last no more than 10–15 min. During this time, the employee may feel overwhelmed with emotion and should not be expected to absorb much information. Instead, it is more important to assure the employee that the laboratory’s HR team will be in touch and available to help on a moment’s notice. When all necessary business has been discussed and the employee has no further questions, the meeting can either be closed or the employee can be asked to provide any laboratory property on his person, such as keys or identification cards.

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Escort the employee from the building—Unless there is a legitimate threat, terminated employees should not be forced to suffer the indignity of being escorted from the laboratory by security personnel. The employee should be permitted to compose herself and gather whatever personal articles she needs to leave the building. It is appropriate to allow the employee to say a few goodbyes to coworkers as she leaves, but it is not advisable to allow the employee to pack boxes or spend unnecessary time lingering in the work areas. Laboratory staff, with the assistance of HR, can box the employee’s other personal items, such as pictures and miscellaneous memorabilia, for later delivery to her home. As the employee is escorted from the building, she should be left with the laboratory’s thanks and best wishes for a bright future. Meet with affected staff—The termination of an employee is an unsettling event for any team. Even if the employee was a problem, a termination reminds everyone that their employment comes with conditions and those conditions must be met. It is a painful reminder of the impermanent nature of employment. More importantly, however, remaining staff will empathize with the life-change being endured by the terminated employee and will feel sad for how things turned out. It may, therefore, be helpful for management to meet with affected staff to simply share in their feelings of sadness and communicate optimism that things will get better soon. It may take a week or two, but the morale of the remaining employees will eventually return, and often with a renewed vigor and sense of purpose. Issue a final paycheck—Once a terminated employee receives her final paycheck, the laboratory has virtually no more control over the employee. It is common for HR to utilize a checklist that must be completed before issuing the final paycheck to the terminated employee. The checklist ensures that any property belonging to the laboratory is returned; this includes but is not limited to: • Identification card • Building keys or access cards • Keys to personal lockers or desks • Password to voicemail • Password to the IT network • Password to computers HR will calculate the cash value of accumulated leave, which will be added to the final paycheck. Laboratory administrators should be prepared to provide HR with any information about accrued compensatory time as well as overtime worked in the final pay period. Once all business is completed to the satisfaction of the laboratory and its parent agency, the final paycheck can be released to the employee. Continuation of the relationship—The termination of employment does not necessarily mean the termination of the employee-employer relationship. Following termination, the employer may have considerable responsibilities to the employee that must be met. If a severance package is owed to the employee, this must be paid in-full according to whatever terms and timelines are required. The employee must also

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decide to either receive a distribution of accumulated retirement funds to which she is entitled or roll the funds into another qualifying account. The employee may need time to speak with a tax advisor about such matters. Additionally, state and/or federal laws govern the continuation of health coverage and the providing of terminated employees with a certificate of creditable coverage, which verifies the period of time during which the employee was covered under a group health plan. The issuing of this certificate may be required by law and helps the employee to secure new health coverage following termination.

Performance Improvement Plans In professional environments having highly trained, educated staff, or in situations where misconduct is not an issue, traditional progressive discipline does not always serve the needs of the organization. Instead, many organizations forego or supplement traditional discipline by implementing what are known as performance improvement plans for employees whose performance or behavior is not meeting expectations. A performance improvement plan is an agreement between an employee and his manager about what expectations are not being met and how to meet them within a specified period of time. It sets forth the responsibilities of both the manager and the employee in bringing substandard performance to a desired level of acceptability. The advantage of performance improvement plans is that it allows a course of action to be specifically customized for the particular needs and goals of an employee. And it reinforces the importance of a robust partnership between a manager and an underperforming employee. It is a positive and forward-looking approach to improving performance without the stigma of traditional discipline. This can be especially helpful in forensic science laboratories where employees having a history of progressive disciplinary action may, in some instances, find it harder to be credible in courts of law. If a performance improvement plan does not produce the desired outcomes, traditional progressive discipline may then be considered as the next step. When developing a performance improvement plan, it is critically important for objectives to be specifically outlined, as well as the point in time at which the employee will be expected to have met them. A performance improvement plan may cover a period as short as 1-week or as long as 1 year. There is no hard and fast rule for setting this timeline, but it should be reasonable for both the employee and the laboratory. After the plan is developed and agreed to, it should be signed by both the manager and employee. This author strongly recommends that laboratories have at their disposal a robust progressive discipline policy as well as a provision for developing performance improvement plans. It may be appropriate, in fact, for the performance improvement plan to be included as part of the coaching stage of progressive discipline. As always, the goal is to restore the employee’s performance to a satisfactory level as quickly as possible.

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Tips for Keeping Notes and Records The effective keeping of notes and records is an important part of monitoring and managing the performance of employees. Particularly for the administration of progressive discipline, maintaining a reasonably comprehensive record of evidence can mean the difference between winning or losing a case in those instances when employees take legal action. But even without the prospect of legal action, the proper keeping of notes and records is a part of good managerial practice. The following are some considerations and recommendations for managers: Don’t prepare for a trial or legal proceeding—It is an unfortunate reality that progressive discipline can result in legal proceedings that pit employers versus employees. Although it is important to assume that any adverse action taken against an employee may result in a lawsuit, there is considerable risk for managers who give the appearance that they were preparing for trial when they should have been spending more time on managing their employees effectively. It is not the job of a manager to prepare for a legal dispute, so the notes and records that are kept should not be so well-organized that it might lead a reasonable person to suspect that the manager was more interested in defeating an employee than supporting her. Don’t combine personnel notes with other notes—Some managers, as a matter of good practice, keep a notebook in which miscellaneous content is recorded on a daily basis. The purpose of such notebooks is generally to help managers stay organized and memorialize miscellaneous information that may be of use later. Although such notebooks are an excellent tool for staying organized, they should not include notes related to the performance or behavior of employees. In the event of a legal dispute with an employee, any records referencing the employee may be subject to discovery through a subpoena. If a manager has made a habit of recording personnel notes with her daily work notes, all the notes may be subject to legal scrutiny whether they are relevant to the employee’s case or not. Document both good and bad—The personnel records for employees, including notes taken by managers, must be a balanced and fair representation of their overall performance. Unfortunately, too many managers fail to record evidence of good performance and good behavior. At such time that personnel records are subject to legal scrutiny, any overemphasis of the negative attributes of employees will detract from the overall credibility of the file. As a result, legitimate evidence of substandard performance or misconduct will be less compelling and therefore less useful to laboratories seeking to defend their decisions. Don’t keep private files on employees—To the extent that each employee of a forensic science laboratory has her own official personnel file in which records related to employment and job performance are archived, it is inadvisable for managers to keep their own private, supplemental files on employees however tempting and useful it may seem. As a matter of professional courtesy, employees have the right to review their personnel files when desired, and it is common for organizations to have policies

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and procedures in place for employees wishing to do so. If managers, however, make a practice of keeping private files on employee affairs, it becomes impossible for employees and administrators alike to know exactly what records are being kept as evidence of employees’ quality of performance. Additionally, keeping private files on employees also weakens the value and comprehensiveness of the main personnel files. Therefore, as a matter of good practice, managers should not keep private files on employees. Any records that are deemed pertinent to the performance and behaviors of employees should be forwarded to HR for inclusion in the main personnel files as quickly as possible. Don’t prepare perfect records—When compiling notes and records related to substandard performance or misconduct, it is important for managers to not succumb to perfectionism. As mentioned previously, perfectly prepared records and notes can sometimes appear to lack genuineness. Handwritten notes, for example, may often appear more credible than formally prepared records. The reason for this is that handwritten notes are generally taken contemporaneously without much forethought. Judges and juries are smart enough to know that a document prepared and printed from a word-processing program may have taken several hours to prepare, during which time the author likely toiled and edited to give the document the greatest impact. Although such a document may be more professional in appearance, it is not necessarily more credible. For this reason, managers should not underestimate the importance and value of handwritten notes and should not hesitate from including such notes in the personnel files of employees.

Because of their contemporaneous nature and lack of forethought, even the simplest handwritten notes can be highly credible as evidence.

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Document observations, not feelings—Although progressive discipline and the need to confront substandard employee performance or misconduct can be an emotional experience for managers, it is important to refrain from documenting personal feelings and interpretations unless they are absolutely necessary. As much as possible, ensure that notes and records provide objective evidence of employee performance without unnecessary subjectivity.