Staying out of trouble: the importance of progressive discipline

Progressive discipline is an essential tool for management, particularly when it’s combined with good documentation and communication practices. Progressive discipline systems are designed to help employers apply fair, consistent disciplinary decisions. Proper documentation and communication strengthen the legal defensibility of those decisions and protect the company from false accusations.

Mutually beneficial
A structured system understood by both managers and employees takes some of the guesswork out of the relationship. Employees aren’t wondering what penalties could come next, and managers can be confident in their disciplinary decisions.
The ultimate goal of correcting undesirable conduct requires communication and collaboration, particularly in the early steps of the process. Because each step is progressively more serious, the system starts with mild “penalties” such as coaching or supplemental training. The employer and the employee can focus on what will work best for the employee to improve his conduct and avoid more serious discipline down the road. Employees are often invited to participate in the problem-solving process and can work with the employer to develop a performance improvement plan (PIP). Involving the employee in the process will increase her engagement and likelihood of success.

Typical steps, essential elements
Generally, progressive discipline systems follow five steps: (1) coaching or reviewing expectations; (2) oral counseling; (3) written warning; (4) suspen¬sion; and (5) termination. Throughout all steps, there are certain elements managers must maintain. First, the employee must be informed explicitly of the unacceptable behavior and understand the specific actions that constitute the unacceptable behavior. Likewise, the employee must be made aware of what desirable behavior looks like. Perhaps most important, the employee must be informed of the manager’s expectations moving forward and the consequences of a failure to comply.
While most progressive discipline systems loosely follow the structure above, the specifics can vary. In a unionized environment, the system is usually sub¬ject to negotiation. A collective bargaining agreement (CBA) often contains detailed provisions addressing progressive discipline. Therefore, if you have union¬ized employees, your managers need to be acutely aware of the disciplinary provisions in the CBA. A violation of a contract provision will be taken very seriously by the union and could escalate to arbitration or litigation.

Proper documentation is key
The safety net provided by a progressive discipline system is inextricably dependent on proper documentation by management. With proper documentation, the system can successfully establish the employer’s effort to correct misconduct before considering more damaging disciplinary action. Then, if an employee is ultimately discharged, management can be confident in its decision. (For additional advice on the right time to terminate an employee, see Jerry Glass’ “Words on Wise Management” column “Are you really documenting performance” on pg. 5 of our March 2014 issue.)
Effective documentation before, during, and after the process serves as a solid record when facts are called into question, demonstrating that the company acted in accordance with its policies and procedures, and encouraging cooperative behavior.

All documentation not created equal
Illegible shorthand notes cannot be considered proper documentation. For your documentation to be effective, you should use your own words, write chronologically, be specific when possible, date and time stamp all documentation, provide the informa¬tion to all parties involved, and always file a copy.
Documentation should not be tedious or overwhelming. If you make it a habit to maintain simple records and follow the above guidelines, it will become second nature. Just ask around—most managers who properly document the disciplinary process have thanked themselves for it later.

Author: Cassandra Lewis a labor analyst for F&H Solutions Group.

Originally published in Words on Wise


Are you really documenting performance?

Clients often ask for advice on the right time to discharge employees who are unable or unwilling to improve their performance over time, even after being given a performance improvement plan. Unfor­tunately, there’s no set answer because every circum­stance is just a little bit different.

Request all written documentation

When reviewing a case, I always keep in mind how a third party might look at the documentation. Specifically, what am I looking for?

• Good two-way communication between the man­ager and the employee. What was the employee told in terms of expectations? How did the em­ployee respond to the manager?

• How complete is the documentation? Is it a com­pilation of the supervisor’s notes, or is it more structured, with details in chronological order? Is it easy to read and follow?

• Are there any photos that can supplement the nar­rative? For example, if an employee hasn’t fixed a machine properly or didn’t complete an assign­ment, can that be demonstrated through pictures?

• Are there any signed documents in which the em­ployee has acknowledged either a conversation or a specific plan for improvement?

Insist on speaking with the manager

It isn’t enough just to rely on written documen­tation. It’s critical to talk with the manager to get the details behind the written documentation. What’s missing from the written documentation that could come back to haunt the company during a vigorous cross-examination from opposing counsel in court or during arbitration? I may have multiple conversa­tions with a manager until I can decide whether the company has a strong enough case to withstand the scrutiny of a judge or an arbitrator.

In addition, sometimes the manager has to rely on a direct supervisor for information. In that case, I now have to be concerned not just about a manager’s performance documentation but also about a supervi­sor’s notes.

If the company is in a unionized environment, the union has a right to review the documentation in your possession. A union’s request for information could be fairly extensive and include e-mails, phone records, notes, and other related documentation.

If the company is involved in litigation, the em­ployee’s attorney will make a very broad information request.

Have a good idea of what the employee will say

My approach is often to play devil’s advocate with the manager so I can “pressure test” just how strong a case is and determine whether we’ve missed any­thing in the performance review.

Advise termination

If the steps above are to my satisfaction, then I ask one last set of questions before I advise a client to discharge an employee. Will the termination of this employee at a particular point in time create issues in the workplace? Is the employee being discharged right before profit-sharing checks are distributed? Is the company in negotiations with the union repre­senting the employee? Is there other news that could negatively affect the employee’s view of the company? Was the employee popular, or someone who was well respected?

Bottom line

My best advice for documenting an employee’s performance, whether it’s in a memo, e-mail, or letter, is to draft the document, walk away for a little while, and then come back and review it again. As you’re re­viewing what you wrote, imagine you are the oppos­ing counsel. Could an attorney question your motives, or is the statement written in such a way that it could be misconstrued or misinterpreted? If the answer is either “yes” or “possibly,” keep working until you feel comfortable with what you have written, any sketches you drew or photographs you took as part of an inves­tigation, or any attachments you may have included in your documentation.

Author:  Jerry Glass F&H Solutions Group

Originally published in Words On Wise

To ‘Rank and Yank’ or Not

Does your organization need forced ranking? An overlooked source of guidance sits within your quality improvement framework.

“Zero defects” is a popular slogan, but quality management warns that not all defects are equally bad. Zero defects can impede quality if you try to drive out every defect. Optimal process improvement is applied only where its value exceeds its cost.

In November, Microsoft ceased its long-held performance management practice of force ranking employees, just as Yahoo introduced the same practice. Does your organization need forced ranking? An overlooked source of guidance sits within your quality improvement framework.

The Microsoft announcement emphasized the company’s goal to encourage teamwork and collaboration. Lisa Brummel, Microsoft’s executive vice president of human resources, stated, “No more curve. We will continue to invest in a generous rewards budget, but there will no longer be a predetermined targeted distribution. Managers and leaders will have flexibility to allocate rewards in the manner that best reflects the performance of their teams and individuals, as long as they stay within their compensation budget.”

Yet forced ranking can clarify performance differences and allow (or force) managers to improve or remove low performers. One Forbes report suggested that Marissa Mayer, Yahoo’s CEO, “inherited a workforce that was bigger than it needed to be and riddled with paycheck-cashing clock-punchers. Precisely because it’s so big, figuring out who the slackers are isn’t easy.” This description may overstate reality, but it illustrates the point that forced ranking has value when restructuring benefits from better revealing high- and low-performers.

David Calhoun, the former CEO of Nielsen Holdings who had a 27-year career at GE, has defended the forced ranking system, saying, “At GE there was only one objective … to force an honest discussion between your manager and you. And there’s nothing that quite forces that more than employees knowing … how that manager ranks them, and then asking that manager, ‘Tell me where I rank and tell me why.’”

Let’s retool this debate using quality management principles: Performance management, including forced ranking, should be applied when value exceeds cost, and that depends on the consequences of the defects discovered and corrected. The defects are unaddressed poor performance (lingering problems) or unrewarded high performance. This helps explain the Microsoft/Yahoo distinction.

By scrapping forced ranking, Microsoft will likely see some high performance not rewarded as handsomely and some poor performance lingering longer. That’s a good trade-off if the lost value is less than the increased collaboration created without forced rankings. Microsoft used forced ranking for a while, which may have removed most low performers, so the value of detecting low performance is less. Microsoft may also now be better at rewarding high performance without rankings.

By adding forced ranking, Yahoo will incur new costs (in managerial time and effort, public backlash, employee resistance and internal competition). That may be worth it if its workforce is too large, and poor performance is costly and hard to identify. The defects of unaddressed poor performance and unrewarded high performance are more consequential at Yahoo, so the quality improvement value of forced ranking is greater.

Microsoft and Yahoo have engineering-driven cultures, where leaders make quality improvement investment decisions like this every day. Hopefully, those leaders are as rigorous in decisions about forced ranking.

One thing suggests they could do better. The quality improvement discipline suggests that a single approach is rarely valuable for an entire process, let alone an entire organization. Targeting matters. Yet, Microsoft and Yahoo both seemed to make these decisions for their entire workforce. We know the consequences of high and low performance varies across jobs, so one-size-fits-all is almost certainly not optimal, just as with software or any other process.

How will your organization decide about forced ranking? Too often, it is with anecdotes or a one-size-fits-all solution that swings from one extreme to the other. A better answer may be as close as the quality improvement processes you already use.

Originally published in Talent Management

Legal Briefing: Knives as Religious Symbols?

Employers are advised that they may be required to accommodate employees’ religious beliefs, and that their efforts to do so should be carefully reviewed.

Kawaljeet Tagore, an IRS agent, started to wear a kirpan after being baptized into the Sikh religion. Sikhs are required to carry the swordlike object. Tagore’s request for a security waiver to continue to access the federal office where she worked was denied because the blade on her kirpan exceeded the law’s 2.5-inch limit, and did not fall within any exemptions.

When the IRS and Tagore could not agree on a religious accommodation that would allow her to access the building wearing the knife, Tagore appeared for work wearing the kirpan, was denied access and was terminated from her job. The U.S. District Court for the Southern District of Texas dismissed Tagore’s lawsuit against the U.S. and several federal agencies under Title VII and the Religious Freedom Restoration Act.

The U.S. Court of Appeals for the 5th Circuit held that the district court failed to conduct an individualized assessment required by the Religious Freedom Restoration Act and instead concluded the government had a compelling interest in enforcing the security law. The appellate court affirmed dismissal of the Title VII claim since the IRS doesn’t control federal building security. Tagore v. United States (5th Cir.) No. 12-20214 (Nov. 13, 2013).

Impact: Employers are advised that they may be required to accommodate employees’ religious beliefs, and that their efforts to do so should be carefully reviewed.

Originally published in Workforce

Report: Equal Pay Would Cut Women’s Poverty in Half

According to a regression analysis of federal data by the Institute for Women’s Policy Research, the poverty rate for working women would be cut in half if women were paid the same as comparable men.

The analysis — prepared by IWPR for use in The Shriver Report’s “A Woman’s Nation Pushes Back From the Brink ,” produced in partnership with the Center for American Progress — also estimates that the U.S. economy would have produced income of $447.6 billion more if women received equal pay, which represents 2.9 percent of 2012 gross domestic product.

Persistent earnings inequality for working women translates into lower pay, less family income and more poverty in families with a working woman. About 71 percent of all mothers in the U.S. work for pay. One-third (32 percent) are single mothers and often the sole support of their families.

“The Shriver Report emphasizes that women play a vital role in the American economy and in the financial security of families around the country,” said IWPR President Heidi Hartmann. “Paying women fairly for their work would go a long way in reducing poverty and giving the economy the jump start it needs.”

Additional findings from IWPR’s analysis include:
• Nearly 60 percent of women would earn more if working women were paid the same as men of the same age with similar education and hours of work.
• The poverty rate for women would be cut in half, falling to 3.9 percent from 8.1 percent among working women. The poverty rate for working single mothers would fall by nearly half, from 28.7 percent to 15 percent.
• The total increase in women’s earnings with pay equity represents more than 14 times what the federal and state governments spent in fiscal year 2012 on Temporary Assistance to Needy Families.

Source: Institute for Women’s Policy Research

Originally published in Talent Management

Should Paula Deen lose here job with the Food Network?

This is inherently an employment issue, as well as, a cultural and moral issue.   What are your thoughts?  Should she have been let go based on her behavior?