Reconfiguring Discipline: Memos, Meetings and Money

By on November 11, 2013 in Current Events, Human Resources with 16 Comments

Have you ever had a coworker who spent more time/energy avoiding work than actually working?  How about an employee who behaved like a teenager, occupying the body of an adult?  In my experience, these people represent a small percentage of the Federal workforce.  Their attitudes and conduct, however, can result in consequences agencies cannot afford in this era of shrinking and uncertain budgets.  This was the subject of an earlier article.

Most employees who break workplace rules do so willfully.  I called in sick and went fishing – behavior that was adolescent, at best.  I could have rationalized my actions any number of ways but I was lying to my supervisor when I called in.  Discipline is for the student who cuts class, the housekeeper who steals cash, and the accountant who backdates forms.

My bad habit ended the first time a supervisor confronted me regarding my leave usage.  I had been a monthly offender for over a year by then.  In retrospect, it’s noteworthy how two previous supervisors must have suspected me but never took the step to confront.

How many switches does it take to turn on the lights?

Some employees are less susceptible to shaming.  Their misbehavior persists… and coworkers know it.  They wait for leadership to recognize and confront behavior issues.  Sometimes they give up hope, as their supervisor seems to avoid the issue(s).

Once their leader decides to act, the process recommended by HR may seem interminable.  Among most of my clients, a typical pattern of discipline for continued minor offenses looks something like this:

Verbal counselings (often more than one);

Letter of Warning/Caution/Counseling;

Letter of Reprimand;

1-day suspension;

3-day suspension;

7-day suspension;

14-day suspension; and finally

Removal

In such environments, the time it takes to reach a conclusion (changed behavior, resignation, transfer, or removal) can run well over a year.  The glacial, bureaucratic process that follows the time it takes to overcome management inertia is costing agencies lots of money on several fronts.

These are the good old days

The Federal HR regulations for correcting behavior problems were designed decades before my (1974) entry into the workforce.  They reflect an era when offices rang with the sound of clicking typewriters.  These regs come from a government without desktop computers.  There were few unions and no EEOC or MSPB.

The only disciplinary actions mentioned in our Code of Federal Regulations (5 CFR 752 – titled “Adverse Actions) are suspensions, reductions in grade, and removals.  Letters of Warning, Caution, Reprimand, Counseling, etc. do not stem from government-wide regulations.  The silly requirements to expunge such documentation after ½ – 3 years are also absent.  (The National Guard Bureau actually requires GS/WS supervisors to document counseling sessions on a special form… in pencil… and to erase such entries after a few months!  In what decade was that written?)

In the era of their invention, receiving a memo with your name in the “To:” line required drafts and clerks to type them.  Either you had done something very good or very bad.  Given the e-mails and text messaging of today’s workplace, however, such memos evoke little interest or attention.

But there’s more news from the 21st century.  Most disciplinary actions are grievable or can be challenged with EEO complaints.  Specialists prepare these memoranda with litigation in mind.  As many readers know, administrative hearings often focus more on trivial matters pertaining to the memo than the misconduct of the individual whose name it bears.  Litigating a Letter of Warning or Reprimand can prove an onerous task.  Meanwhile, hard working coworkers grow impatient.

Elevating the sit-down

As I read case law, judges look for “clear notice” from management to an employee regarding behavior issues.  A well-documented, face-to-face confrontation often satisfies that standard.  Moreover, a personal meeting may prove more effective than a template-conforming memo.  For the remainder of this article, I’ll call such meetings “sit-downs”.

The sit-down goes by many names such as: “disciplinary counseling”; “oral admonishment”; “verbal reprimand”; “reading the riot act”; “verbal warning”; etc.  They are all essentially the same.  Instead of typing the supervisor’s displeasure into some pre-existing format, that leader says what s/he means – with minimal reliance on intermediaries like Administrative Officers, HR Specialists, attorneys, etc.

How can a supervisor successfully sit down with an employee in an attempt to correct their behavior?  I have several suggestions:

  1. When confronting an employee regarding their conduct, be aware that the employee doesn’t have a legal right to representation.  No questions are being asked or investigation conducted here, therefore the representation right commonly referred to as “Weingarten” doesn’t apply.  I don’t, however, object to a representative’s attendance if it’s useful.  A union steward may help the employee take in what’s being said and reduce the likelihood of defensive responses to criticism.  Bottom line – if the supervisor doesn’t want a union representative in this meeting, there’s no requirement to invite one.
  2. I have learned that supervisors will inevitably employ their individual communication styles in such meetings.  The government’s workforce is diverse and so is leadership.  Most supervisors are averse to confrontation and uncomfortable.  My advice is simple – be yourself.  Most of us look silly when we try to be calm and reasonable and we’re neither.  Personal honesty is more often rewarded than punished.
  3. Have a few talking points written down.  The supervisor should avoid leaving the room unsure if all matters regarding the employee’s conduct were covered.  It would be appropriate and smart to have these topics agreed upon by the next level of management.  One essential talking point should be the supervisor’s expectations for future conduct.
  4. It is important to mention the effect of the employee’s behavior on leadership and coworkers.  Statements like the following often help an employee understand the impact of their deportment: “I have problems trusting you.” or “Your coworkers are frustrated but don’t want to report that you’re missing from the jobsite.” or “I’m tired of arguing with you.”
  5. If the employee challenges what’s been said (by arguing or denying), try refocusing on the present and future, rather than debating the past.  The objective of this meeting is to ensure the misconduct doesn’t recur in weeks/months to come.  One example might be, “Whether my version of events is accurate or not, I’m hoping you agree with the concept of 80 hours of work for 80 hours of pay.”  Seek agreements/understandings regarding future behavior.
  6. People ask if it’s wise to tape such an encounter.  I discourage doing so for several reasons.  The main one is this:  When a recording device is present, people tend to speak to the machine rather than each other.
  7. A note taker can be present.  Given the awkward nature of the conversation, it’s difficult for a supervisor to think of what to say, listen to the employee, and take notes.  A fellow supervisor, HR person, or administrative employee can be there to do so.  The supervisor can simply say, “Ralph is here only to take notes.  After we’re done, I’ll give you a copy of his notes.  Ralph, please don’t tell anyone outside this room what you have heard.”  Thereafter, the note taker becomes almost invisible.
  8. Alternatively, wait until you’ve said what needs saying and then summarize it in writing before the employee returns to work.  This can seem awkward and time consuming; however, having a single version of what was said behind closed doors can prove important.  Assuming civility, the employee should be allowed to review the supervisor’s characterization of the discussion and given a copy.  This isn’t a game and there needn’t be secret or confidential documents.  As I often say in my seminars, “Management should play its cards face-up.”

Considering the advantages

Thoughtfully designed and executed sit-downs can be used in lieu of more formal disciplinary actions.  If one or two steps can be eliminated from the tedious process of progressive discipline, the potential savings may amount to tens thousands of now-precious dollars.  A new disciplinary pattern that could substitute for the one shown above might look like this:

Sit-down

Reprimand

Sit-down

5-day suspension

Sit-down

14-day suspension

Removal

Some union officials will look at this example and find it akin to workplace Fascism.  Frustrated leaders will probably view it as only slightly less complex and time-consuming than the arcane progression initially described.  Most significantly, attorneys and HR advisors are likely to continue on an unchanged path, believing that discipline must progress ever-upward in severity.

“Progressive discipline” needn’t mean unwavering escalation.  As I read through the landmark Merit Systems Protection Board decision in Douglas et.al. v. Veterans Administration et.al. and similar cases, I found the Board accepting varying disciplinary patterns (including sit-downs) as long as the appellant was clearly advised regarding their misconduct and future expectations.

Risk and reward 

Rethinking the government’s disciplinary practices should include mediated agreements re: future conduct and paper suspensions in addition to greater reliance on sit-downs.  This will prove challenging for attorneys and specialists who have less tolerance for risk and change.  Moreover, the Office of Personnel Management (OPM) has let disciplinary policies and practices lie fallow since anyone living can remember!  …and shows no signs of wanting to change their ancient regulations.

Any risk associated with implementing such minor changes will likely be outweighed by cost savings on several fronts.  Disciplinary memoranda and suspensions commonly provoke grievances and EEO complaints.  Federal Executive Boards have been advised by OPM that resolving an EEO “pre-complaint” saves an agency approximately $72,000 on average.  Add to that the costs of processing grievances and the morale problems among supervisors being investigated and put on the defensive during the course of such adversarial processes.

The savings realized by substituting a sit-down or two for traditional disciplinary actions is in everyone’s interest, especially the employee’s.  The sit-down promotes dialogue and common understanding rather than legalistic charges, tables of penalties, due process protocols, Official Personnel Folders, Douglas Factors, and burdens of proof.

The Federal government’s disciplinary regulations and procedures are outdated and ineffectual when compared to modern HR practices outside Uncle Sam’s household.  We focus excessive time and energy debating and litigating past misconduct, rather than setting clear expectations for the future… and holding employee’s to them.  If an individual lacks the discretion or maturity to remain in government service, leadership should be allowed to confront them as adults and expect change and termination of employment if it’s not forthcoming.  Inertia is no longer an option.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

Top