Some agencies, notably the Department of Health and Human Services (DHHS), have adopted alternate or alternative discipline as a accepted option for managers dealing with employee misconduct. A number have not. If you haven’t used or considered this tool, this article will give you an idea of what is involved.
Everybody wins in an alternative discipline agreement. The manager addresses the problem. The employee either doesn’t lose pay or have a permanent record of an offense in the Official Personnel Folder. The union, if involved, helps save the employee from himself–no mean feat with some people.
A common use for alternate discipline is in leave offenses. What sense does it make to suspend an employee for an absentee problem? If the goal is to get them to work and they finally show up, does a federal manager really want to send them home?
Each user has a favorite format for the agreement and here is mine (Alternative Discipline Agreement). I think there are some clauses worth discussion other than the boilerplate that should go into every agreement.
Description of Event (#3 in sample)
Either pay careful attention to this or use the proposed action as an attachment to the agreement and reference it as such. Depending on your approach, the language of the agreement could be the only place where the facts are described. If the matter is later litigated, you’ll have facts the employee can’t very well disagree with at hearing.
Admission of Facts, Acceptance of Responsibility, Appropriateness of proposed Action (#6 (a) in sample)
Like the statement above, this is critical to both the employee’s rehabilitation and takes away most due process claims if the matter goes to a third party.
Implementation of Discipline If Agreement is Violated (#6 (b) in sample) and Next Action (#6(c) in sample)
It’s important that the employee understand that the agency will both implement the discipline held in abeyance and take a subsequent action based on the violative behavior. I heard some say that they thought it was “piling on” to do this but I never saw their point. Two events, two consequences, what’s the problem?
Waiver of Appeal(#6(e) in sample)
I included this clause for your information but, in my view, it is not necessary.
If you have an admission of misconduct and the facts thereto as well as an admission that the penalty is appropriate, waht is there to try at a hearing? The argument I hear from those who tout a waiver is that it saves the government the time and trouble of a hearing.
Look, lawyers are a fixed cost. We pay them whether they work or not and we’re giving them a case that even the LA District Attorney could win, so why insert a clause that may give the employee’s representative a reason to tank the deal.
No Coercion Statement (#6(g) in sample)
Arguably the most important clause, this establishes that the employee’s involvement was voluntary and a choice among options. This clause is important because most third parties consider Federal employees to be both so meek and imbecilic as to be incapable of dealing with the vicious and evil-motived supervisors we all know lurk in the halls of government. “Gimme a break” but include the language. It was written after considering the decisions from the Merit Systems Protection Board dealing with coercion.
If you’re in a position to negotiate discipline, give this some thought. You get a guaranteed result and, most important, you involve the employee in the outcome. Management, with cause, may take disciplinary action against an employee and the employee need do nothing in the process. This makes them an active player in their fate. It can also tell you, as you conduct the process, whether the person is worth the effort, and that’s a good thing to know in all circumstances.
As always, the opinions stated here are mine alone. (And some might say as usual.)
