HR LEADERSHIP FORUM- APRIL 2011 Discipline from Start to Finish - PDF document

HR LEADERSHIP FORUM- APRIL 2011 Discipline from Start to Finish Outline 1. HRD Review Process for Potential Discharge Cases a. Case Conference b. Department submits two copies NOID to Service Team Manager i. One copy is reviewed by STM other copy is sent to County Counsel ii. STM and CoCo meet and discuss case. iii. STM communicates issues back to department for follow up c. STM submits case with summary and recommendations to Asst HR Director d. Asst HR Director adds their recommendation and forwards to HR Director for final decision. 2. Purpose of NOI (Skelly package) a. Meets one of the due process requirements (Skelly vs. State Personnel Board) before a “property right” can be taken from an employee. 3. NOI Document Structure a. Discipline proposed b. Reasons for proposed discipline i. Policy/Procedure violations ii. Failure to meet performance standards c. Brief employment information i. Date of Hire ii. Date started in current classification/assignment iii. Responsibilities of position/assignment iv. Relevant training or licensure v. Relevant professional ethics or standards d. State how agency became aware of issue e. Review of investigation i. Who conducted the investigation ii. Evidence obtained and how it was obtained iii. Parties interviewed and what they reported (How did they obtain the info, vantage point during incident, confirmation of witness statement, etc.) iv. Overview of investigatory interview v. Credibility issues (Relationship with accused, discrepancies in statements, potential motives of witnesses, etc.) vi. Address mitigating factors or exculpatory evidence investigated vii. Factual statements (recitation of evidence) vs. conclusions or opinions

f. Recital of P & P’s violated including specific sections i. Was the employee provided a copy of the policy? ii. Was any training provided regarding the policy? iii. Any reminders regarding the policy? iv. What actions should the employee have taken based on the policy or procedure? v. Impact of the violations or performance on the operation or to co- workers/clients vi. Any relevant professional or ethical standards violated? g. Previous Discipline imposed for similar actions i. Type of discipline and violations ii. Recent performance evaluations iii. Relevant performance discussions h. Conclusions/Reasoning for proposed discipline i. Outlines the writers thought process for the discipline ii. Addresses credibility assessments iii. Ties conclusions to the facts of the case i. Due process rights i. Notification of Skelly hearing ii. Notification of MOU rights j. Attachments i. Include anything relied upon for the discipline decision ii. Include any documents referred to in the NOI iii. Methods of attachment 4. Writing Tips a. Summarize extensive data into charts if possible b. Quote directly from witness statements- Don’t summarize c. Be concise- only include relevant information d. Don’t try to hide relevant information- It will come out! e. Make the information easily understood by a neutral reader f. Spell out acronyms the first time they are used g. Briefly give an overview of a particular program to help a neutral reader understand more of the context h. Stick to the facts and not your conclusions or interpretation of the facts 5. Other Information HRD Considers a. Can you prove the information in the NOID? b. Performance evaluation history c. Future witness availability d. Disparate treatment e. Nexus for off-duty conduct

THE SEVEN ELEMENTS OF JUST CAUSE: 1. Was the employee given forewarning or foreknowledge of the possible or probable disciplinary consequences of his/her conduct? Some factors to consider:  How was the employee specifically notified of the behavior that needed correcting?  Is there documentation indicating dates and discussion of this notification?  Was the employee notified of the potential consequences for not correcting the behavior?  Did the employee acknowledge that they understood the behavior to be corrected and the consequences for not doing so?  Was the employee given a reasonable opportunity to correct the behavior? 2. Was the rule, policy or supervisory directive reasonably related to the orderly, efficient and safe operation of the department? Is the performance required something that the County/department might properly expect from its employees? Some factors to consider:  Was the focus on the performance or conduct and not the personality of the individual?  Is it reasonable to expect that the action being taken will restore or maintain the operation of the work area?  Is it reasonable to expect that the action being proposed will have the desired result?  If the matter is related to off-duty conduct, is there a nexus between the off-duty conduct and the employee’s assigned duties? 3. Did the County/department, before administering discipline, make a reasonable effort to discover whether the employee did in fact violate or disobey a rule, policy or directive of management? Some factors to consider:  Was the employee interviewed?  Were questions asked that would determine the facts?  Were the employee’s comments fully considered?  Was further investigation conducted based on the employee’s input?  Were any mitigating factors addressed?  Is there sufficient concrete information that the employee did, in fact, violate or disobey a rule, policy, standard or directive of management? 4. Was the investigation conducted fairly and objectively? Some factors to consider:  Were questions asked of the employee and any witnesses to determine the facts and was the information reported fully considered?  Were mitigating factors or was exculpatory evidence investigated?  Was the employee given ample opportunity to explain the situation?  Were witnesses suggested by the employee interviewed?  Was all documentary evidence collected and maintained in a safe chain of custody?  Was electronic evidence properly secured and not tampered with? 5. Was a progressive discipline approach taken with the employee? Some factors to consider:  What progressive steps were taken to resolve the matter?  Did the disciplinary action match the nature of the offense?  Did the nature of the offense warrant bypassing some of the progressive steps?

6. Has the County/department applied rules, orders, and penalties even-handedly and without discrimination to all employees? Some factors to consider:  What is the “past practice” in the department for actions of a similar nature?  What is the “past practice” in the County for actions of a similar nature?  Have the penalties been applied even-handedly for actions of a similar nature regardless of a person’s standing in the organization?  Has the rule or order been enforced consistently in the past? 7. Was the degree of discipline administered by the County/department reasonably related to:  The seriousness of the proven offense? (Did the punishment fit the crime?)  The record of the employee and his/her length of service? (If the employee has years of positive performance, is the action severe enough to warrant the proposed discipline?)  Previous discipline given to other employees in similar situations?