An old axiom in real estate sales is location, location, location. The modern axiom to prevail in human resources disciplinary actions is documentation, documentation, documentation.
Taking disciplinary and adverse action should be the court of last resort when coaching and constructive counseling has not brought about the desired behavior modification. In fact, removal is looked upon by arbitrators, and MSPB judges, as the economic death penalty.
When you find yourself in this arena it is truly a zero sum game where there is going to be a winner, and a loser. To ensure that your action prevails requires deliberate care to document the “what, where, why, when, and how” to demonstrate that the action you are taking is for just cause or to promote the efficiency of the service.
Arbitrators apply a “just cause” standard which according to Black’s Law Dictionary is the same as “good cause.” In other words, an action is legally sufficient to show why the action should be sustained. The MSPB applies an “efficiency of the service standard.” This standard can be vague and confusing and MSPB defines it this way: “an adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee’s ability to accomplish his duties satisfactorily or to some other legitimate government interest.” Is there a significant difference between the two standards? Not to this writer.
One thing though is clear, regardless of whether you are in arbitration or before the Board, both consider removal as the economic death penalty, and management must demonstrate that its action to remove a person is necessary, and for which a lesser penalty should not be considered.
Another major factor a third party is looking for is progressive discipline, whereas management is not playing the role of the “Queen of Hearts” from Alice in Wonderland. To prevail management must offer credible evidence through documentation and testimony. Documentary evidence according to Black’s Law Dictionary is “evidence that is supplied by writing or other document(s), which must be authenticated before it is admissible.” This authentication comes by testimony that provides direct personal knowledge that something is true.
Documentation is the written record of employment events of an employee’s actions, discussions, incidents of performance or conduct failure, witness statements of employment violations, prior discipline taken, and other direct evidence having a bearing upon an event. Documentation allows management to preserve a record of what has occurred surrounding a specific event. It is meant to be contemporary and factual. Documentation also includes the employer’s published policies and procedures and performance plans, and expectations intended to show the requirements to promote organizational efficiency and effectiveness, and fairness in the workplace as to what is expected of all employees. This documentation should also include time, date and place of incidents of coaching and counseling designed to improve a person’s performance or conduct.
Well, this seems straight forward and simple enough to achieve, right? Managing people is very time consuming and one of the most difficult aspects of a supervisor’s job. Too often a supervisor/manager is consumed with the technical aspects of getting work accomplished that they overlook that documentation is just as essential.
Conflict in the workplace is not fun for anyone directly impacted by it. Human behavior is exactly the same as a law of physics pertaining to electricity. It will always take the path of least resistance.
Documenting performance and conduct failures is often looked upon one of the most burdensome, and an action that will follow that path of electricity where it is put off or not done at all. This is where management puts the cart before the horse. When the employer/employee relationship is deteriorating and heading in the direction where some disciplinary or adverse action may be necessary, the absence of appropriate documentation will make a decisive difference in the outcome. This may setup a conflict between management and the human resources and/or legal department because the manager will be advised that his/her proposed action is weak or too weak to move forward. The manager then feels betrayed by the lack of support, and may retreat to doing nothing, which only exacerbates an unacceptable condition. Once you have decided that you must proceed with an action, that is otherwise appealable to an arbitrator or the MSPB, then management’s only focus is to ensure that it will prevail in this zero sum game.
Employment is simply an agreement between an employer and an employee that the person will provide a level of service to advance the employer’s mission in exchange for compensation. When an employee violates a rule, reports to work late or fails to perform, oral admonishments are not worth the paper they are written on. Any of these deserve a written cautionary constructive note from their supervisor.
Too often a failure to document is because supervisors think it must be in some formal fashion. This is a myth. An email is sufficient, and even a contemporaneous note in a Franklin planner, or a government desk calendar can be sufficient to document an event or a discussion when this is authenticated later by first hand testimony. Many managers will admit that they do not document everything as they should, and too often this is put off for days or weeks, and by then a memory is too imprecise.
In a former agency where I worked, the agency director wisely stated when there was a significant performance or conduct shortcoming; he expected the supervisor to be relieved of his/her supervisory responsibilities for the other team members and to dedicate his/her efforts to the person in need of remedial attention.
In the interim, someone else should be temporarily promoted to take over the day-to-day supervisory responsibilities of the remaining team member. The expectation was the supervisor would either be able to bring the person up to an acceptable level of performance or conduct, or to acquire sufficient documentation to sustain a personnel action. The side benefit was to also allow management to observe another who may have future supervisory potential. What was clear in his message was the maintenance of an undesirable status quo was not acceptable – period.
Here are some tips for documentation, that in the long run, will make a supervisor’s life and ability to withstand any personnel action they take a lot easier:
- Clearly state that this is to be considered a warning citing any applicable workplace rule or performance standard;
- Document all performance and conduct discussions the same day before your memory fades, and reiterate expectations concerning performance or conduct;
- Describe the misconduct or performance problem in very specific terms to include any other documents that support the observation;
- Include reference to any prior discussions or warnings by date and paraphrasing what was said at that time;
- Always be professional in tone, and never include any remarks than may be construed or misconstrued as animus or bias;
- Never maintain your supervisory notes on a shared drive in a LAN system where others may acquire access to them;
- Clearly convey that if the employee’s performance and/or conduct does not immediately improve the consequences may be some form of disciplinary action that may include removal; and
- Ensure that your documentation and its delivery and storage conforms to your collective bargaining agreement, if applicable.
It is recommended that your documentation be personally delivered to the employee, and request that the employee sign and date your copy only affirming its receipt. In the modern era, email offers a convenient method of delivery, but it takes away the personal impact and effect. If email must be used because of distance or some other reason, be sure to obtain an electronic return receipt that it was received and read.
One of the biggest myths in government is that people cannot be successfully disciplined or removed because of serious performance or conduct issues. I will be the first to admit that it does require work, but when there is a collaborative effort between managers, human resources, and legal counsel, coupled with sound documentation, it can be done for which the action will be sustained.
The MSPB has upheld substantially more performance conduct based actions than it has overturned, only because the documentation was there to support the action being taken.
In labor relations there is a term known as BATNA, Best Alternative to the Negotiated Arrangement. The alternative in employee relations to doing nothing or failing to document workplace problems only perpetuates a bad situation that not only adversely affects productivity and serves as a negative return on the compensation being spent, it also sends a very bad message to those who are working hard and doing the right thing. This can and will become a cancer within the organization and respect for management will only spiral downward.
