A SUPERVISOR’S GUIDE TO PROGRESSIV DISCIPLINE, PART 2

BY MICHAEL S. TERWILLIGER

In Part 1 (May 2005), the concept of progressive discipline and the preventative, corrective, and adverse phases were discussed, as well as the advantages of preventing problems from evolving into situations that warrant corrective actions. All of this, of course, is based on the assumption that the majority of your employees want to be competent and effective in performing their duties and want to maintain good relations with other employees.

The reality is that any organization with more than one employee sooner or later may expect that someone will unwittingly, thoughtlessly, or willfully violate the standards of conduct and job performance. If these situations are not corrected within a reasonable time period, additional problems will arise.

An employee who does not follow the rules can undermine other employees’ morale because these employees will want to know why there are different standards for different folks or may be made to feel that their hard work is irrelevant. Unacceptable behavior will disrupt the workplace and reflect unfavorably on you and your organization. Therefore, if the preventative phase has not worked, you will have to take prompt corrective action.

THE CORRECTIVE PHASE

Develop an Accurate Statement of the Problem

You must have a methodology for determining if it is absolutely necessary to implement some form of corrective action. One way to do this is to create a checklist of questions, such as the following to help you determine if corrective action is needed.

• How long has the employee worked for the district?

• Have the specific standards of conduct/behavior and performance been explained to the employee?

• Are the specific standards of conduct/behavior and performance in writing, and have they been given to the employee?

• What is the employee’s past history of discipline?

• What is the exact nature of the current problem?

When and how does the problem occur? Are the occurrences documented?

• What is the history of attempts to correct this problem? Are they documented?

• What are the circumstances surrounding the present problem?

• What individual or individuals are involved?

• Are there witnesses? If so, were they interviewed? Was the information recorded?

• What is the employee’s side of the story? Has he or she been interviewed? Have conflicting statements been reconciled?

If you read the section on the preventative phase in Part 1, it would be apparent that the first few questions are asking if you had done any preventative work prior to the manifestation of this problem. In answering these questions, keep in mind that it is important to get the facts, investigate, and report the incident with a recommended course of action to your supervisor should it be required, or that you at least get your ducks in a row so you can be fair, impartial, and objective in determining a course of action. Depending on your answers, at this point a corrective interview may be necessary.

THE CORRECTIVE INTERVIEW

In this situation, let’s just say the preventative measures listed earlier have been applied and the employee has been informally counseled in an attempt to correct the problem, but the problem still exists. Informally counseled simply means you or other supervisors have talked to the person about the unacceptable behavior and there has been no positive change in that behavior. It might be a situation where the person does not complete a certain task on the fireground every time, does not follow the daily work schedule, or is not washing an engine properly, and discussing the situation with the employee has not resolved the problem. The next step would be to intensify the corrective action. One way to do that is through a corrective interview.

The corrective interview is somewhat of a benchmark in the progressive disciplinary process. It is either (1) the beginning of acceptable behavior on the part of the offending employee, meaning the interview has a positive effect; or (2) continuing documentation, which could be used to support formal adverse action down the road should things not change for the better. The corrective interview is not a form of adverse action, and it is not an annual performance review. It is simply a meeting between you and an employee to develop a plan for changing the employee’s unacceptable behavior. It is an honest attempt to avoid formal adverse action down the road.

An employee does not have the right to representation during a corrective interview, but your organization may allow a representative to be present if the employee requests it. I have found that a request for representation is directly linked to the gravity of the problem and the relationship the supervisor has with the employee prior to the interview.

Before you arrange for the interview, make sure you are fully prepared. Let your immediate supervisor know that you are conducting the interview; confirm that your organization approves of this approach. Make sure you have a good reason for the interview and that you have all the supporting facts. Develop a plan for employee improvement.

Do Not “Let Things Go”

If there is need for a corrective interview, do not procrastinate; schedule the meeting as soon as feasible. In most cases, the problem will not go away and probably will only get worse. If an employee is doing something wrong, your instinct might be to let it go with a passing comment and try to make it work. Do not fall into this trap. Do a corrective interview with documentation, not “hanging paper.” It is helping the employee to adjust. Letting it go will result in an ugly confrontation down the road, which would serve no other purpose than to get you in trouble for operating a partial and arbitrary work environment. Follow this process because it is the only recommended path, and it works.

Preparing for the Corrective Interview

Once you are ready to go ahead with the corrective interview, following some guidelines can help ensure that it will be conducted in a professional and fair manner.

• Choose a site for the interview that will afford privacy and eliminate the potential for all interruptions. This will demonstrate to the employee that his interview is as important as any other issue demanding your attention.

• Set aside plenty of time to complete the process.

• Plan in advance the topic and issues to be covered. Keep the discussions job oriented as best you can while focusing on the problem at hand and the unacceptable behavior. State the issues clearly, stick to the subject, and use examples and relate them to the issue.

• Do not exaggerate the problem or apologize for having to do the interview. Avoid prolonged discussions, anger, accusatory discussions, jumping to conclusions, not listening to the person, requiring abject submission or agreement, and bluffing or threatening. Be helpful, and encourage the employee while respecting his dignity and viewpoint. Stay calm and objective. Be above board at all times, Discuss the Employee Assistance Plan available.

• Make sure the employee completely understands what he is doing wrong. Fully explain the purpose of the interview and that what occurs at the interview will be documented in writing.

• Try to tailor the approach to the employee; recognize that everyone is different. This is a touchy area in that what I just said is, “Treat each person differently.” Expect the same work activity and compliance to rules and regulations across the board, but vary the approach to discussing these issues for each employee. It is a coaching technique and a valuable skill to learn. A good analogy would be football-teaching receivers to run routes. The route in the playbook is the same for all receivers, but, as you spend time with each person, you approach him in a fashion you believe will get the most out of that individual.

• Never block the employee from going to the next-level supervisor. Do not let the employee direct the discussion.

• Take notes to incorporate into a written report of the meeting. Include the adopted plan for change. When the report is available, have the employee read the written summary, sign it, and date it. Give the employee a copy for his files.

• Set the time frame within which the expected change should be accomplished. Schedule follow-up meetings to assess the progress being made. Send a memo to the employee at the end of the period designated for the behavior change, indicating whether the change was accomplished and acceptable. If the problem was resolved, keep the positive letter in the employee’s file for one year. On the other hand, if the situation was not resolved according to the original agreement, the negative letter would be part of the evidence that indicates further action is required. Positive or negative, the follow-up memo should be signed and dated by the employee.

Corrective Interview Is Not an Adverse Action

The corrective interview is not an adverse action; therefore, do not file anything about the interview with the personnel office unless it is department policy. If it is department policy, placing a corrective interview in an employee’s personnel file makes the corrective interview formal and possibly an adverse action. Either way, keep a copy of the written summary and follow-up memo in your supervisor file for one year. If the employee refuses to sign the summary or follow-up memo, indicate this on both documents. In this case, I suggest bringing in another supervisor and having him verify the employee’s refusal to sign.

THE LETTER OF WARNING

In a perfect world, all employees would change their behavior when they receive the corrective interview, but sometimes the corrective interview fails to work and you will be forced to serve the employee with a Letter of Warning. It advises the employee of the continued deficiencies that need to be corrected and the consequences of not accomplishing the correction by the due date. If you have a progressive discipline policy that is enforced, employees will realize that you are taking the next step in the disciplinary process and that they will find little recourse when they whine to an attorney or a union representative.

A Letter of Warning is an informal action. It is also placed in the supervisor’s working file. The difference between this and the report from the corrective interview is that a copy of the letter is also placed in the employee’s personnel file for three years. It should be used as an instructive, corrective tool instead of an indefinite punitive device. It is intended to correct an unsatisfactory situation. However, if the behavior or performance problem is not corrected, what separates the Letter of Warning from the corrective interview is that it can serve as documentation for formal adverse action. The employee may submit a rebuttal, which would be attached to the Letter of Warning.

Once the letter has served its intended purpose (three years), it is destroyed. If the employee has not improved his work performance, the Letter of Warning should be incorporated into the next annual performance appraisal as well. Here, I want to reemphasize how important annual performance appraisals are-not just when you have a problem employee but also when the rubber meets the road during the progressive disciplinary process.

A Letter of Warning should advise the employee of the deficiencies and identify previous corrective actions taken (corrective interview). Advise the employee of the corrective action necessary, and give directions and a time for achieving them. The time allowed for making the improvement should be appropriate for the correction expected. Always specify a date on which the employee’s progress will be reviewed. Follow up. Contact the employee if the work performance or behavior is not corrected; this notice and the Letter of Warning may be used in formal adverse action.

Suggested language for a Letter of Warning may be as follows:

“Your conduct on this occasion was unacceptable and will not be tolerated by this District. If you engage in similar conduct in the future, the District may take adverse action against you based on the incidents cited in this memorandum, as well as any future incidents.”

This language properly warns employees before you take an adverse action and does not impose a penalty on an employee more than once for the same incident. This language should be used in instances where you previously had counseled the employee and set a time within which to improve but the problem still has not been resolved.

EMPLOYEE’S RIGHT TO REPRESENTATION FOR INFORMAL ACTIONS

An employee technically does not have a right to representation during the corrective phase or during routine business communications unless formal adverse action is a possibility. However, your organization should allow a representative to be present if the employee requests it. The following communications are considered informal actions and are part of the preventative and corrective phases of the progressive discipline process: routine business discussions, performance evaluations, training discussions, job-related counseling, career development discussions, a corrective interview, and preventive or corrective actions (includes Letter of Warning).

If, however, during any of these communications, you receive information that may lead to formal adverse action or rejection during probation, the employee has a right to representation. You are required to inform the employee of his right to representation and must postpone your meeting/discussion if representation is requested and cannot be available at your originally scheduled meeting. I have found it is much easier to let another person be present if the employee wants it. If you are doing your job, you have nothing to hide. Remember, common sense should prevail. If you are counseling a firefighter for the first time about deficiencies when cleaning the ambulance after a call, I would be shocked if the firefighter requests representation. Conversely, if you are counseling a firefighter for the second time about inappropriate comments to a firefighter of the opposite sex, you should probably inform the firefighter that this behavior could result in future adverse action if it is not stopped, and he might want representation.

Employees are entitled to representation during meetings with a supervisor or other agent(s) acting on behalf of your organization any time the employee is expected or required to respond to questions and the employee has reason to believe that he may be disciplined for the answers given or for refusal to answer. The key component here is responding to questions. If you are counseling a person about cleaning, you are probably not going to ask questions except for those such as inquiring if the employee is all right. This can be compared to the Miranda Warning: If you are asking the employee questions to build a case, then let him know he has the right to representation. I have found that if I get to the Letter of Warning level, odds are that there is the potential for future adverse action if the employee doesn’t cut it out, so be aware of that potential. Trust human nature and, in this case, hope for the best, but plan for the worst.

RECOMMENDED DOCUMENTATION

Keep complete and accurate records to ensure you and the employee can take the appropriate action. When documenting a case such as this, ensure all notes are dated and signed, keep all witness statements, and keep any substantiation of the course of prior/continuous corrective action you followed, including what was told to the employee. Have available all documents pertaining to the standards of conduct or performance that have been breached, such as schedules, work records, accident reports, attendance reports, and absence requests. Keep a summary of pertinent dates and descriptions of actions to delineate timeline relationships. Be able to produce duty statements, previous annual appraisals, rejections from probation, and training records (if pertinent). Have available written standards of conduct or performance relative to the deficiency, such as organization policies, the Personnel Manual, and memorandum-of-understanding provisions. It might be appropriate to have comparisons of the employee’s work with published or known performance standards-for example, where poor production is the problem, production records should show the results of other employees performing similar tasks during the same period, if relevant to the situation.

YOUR SUPERVISORY FILES

Supervisory or working files are the files you, the supervisor, maintain on each of your employees. Your working file is not the employee’s official personnel file maintained by the personnel officer. (No, it is not the little black book, which is illegal, by the way.)

These supervisory files will contain documents such as your copy of evaluations/appraisals, written standards of performance and conduct given to your employees, written instructions for special projects or assignments, current duty statements, leave balances, and the like. The supervisor’s file should not contain documents of which the employee is unaware. You may keep calendars and log books if you are documenting an employee’s behavior or performance problems. However, you should first inform the employee that you will be doing so. For instance, inform the employee that attendance is a problem and that arriving late at work, as well as any absences, will be recorded and kept in your working file. Direct any questions regarding what may or may not be placed in your working files to your Administration Office or chief. Much of this information should be covered in your organization’s retention policy.

THE INFORMATION PRACTICES ACT

The Information Practices Act gives employees the right to inquire whether an organization maintains a record about them and to be notified if that is the case. It is essential to recognize the following: Any notice sent to an individual which in any way indicates that the agency maintains any record concerning that individual shall include the title and business address of the agency official responsible for maintaining the records, the procedures to be followed to gain access to the records, and the procedures to be followed for an individual to contest the contents of these records unless the individual has received this notice from the agency during the past year.

In my department, if my folks want to look at their personnel file, they just have to call and set up an appointment with my administrative officer. The only rule is, the file stays with us at all times.

A supervisory or working file should be concise and impeccably accurate. Inasmuch as there are exceptions to the disclosure and inspection mandates of the Information Practices Act, it is highly advisable to seek counsel from your organization’s Legal Department if an employee asks to review a supervisory or working file.

• • •

Corrective action is the beginning of the documentation needed if an employee takes you to the adverse phase, which will be discussed in Part 3.

MICHAEL S. TERWILLIGER is chief of the Truckee (CA) Fire District. He began his career in 1972 with the California Department of Forestry, where he served for 24 years in the following assignments: division chief of operations (South) in the Nevada-Yuba-Placer Ranger Unit and operation section chief and planning section chief on a Type I team from 1988 to 1996. He is a certified fire behavior analyst. Terwilliger was incident commander for the Sierra Front Wildfire Cooperators Team, which operates along the eastern California/Nevada border, and served as its incident commander for six years. He also instructs operations section chiefs, division group supervisors, and strike team leaders.

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