Employee Discipline: Rethinking Strategy and Tactics

A short while ago I attended a social event and one of the other attendees had brought a local police officer as a guest. The two of us ended up in an extended conversation. It seems that he had just been notified that an appearance before the discipline review board was mandated. He was uncertain about what he was being called before the board and was clearly agitated by the fact. Our discussion focused on the way discipline was administered in the department and how the discipline review board was used as a tool of intimidation and fear.

Originally I had intended to write this e-zine on the topic of discharge for absenteeism. The above conversation, however, stimulated my interest in sharing some thoughts about why the discipline process is so often ineffective. My purpose is to focus on some basic principles that are necessary to ensure the effectiveness of your discipline program. I am offering the following seven points as a way to stimulate your thinking about the manner in which discipline is administered in your organization and the effectiveness of the discipline program.

First, the word discipline itself is intriguing because it has both a positive and negative connotation. “That child needs to be disciplined.” “She is a very disciplined employee.” How different these two sentences are. One uses the word discipline as a corrective action with the connotation of punishment in the context of something wrong. The other uses the word as an admirable characteristic related to effective performance. What I believe often gets lost is the fact that we ought be disciplining employees for the purpose of building a well disciplined team. Question, is discipline administered in your organization for the purpose of improving employee discipline? Or, do you simply punish people when they are bad?

Second, employees are disciplined for issues around misconduct and unacceptable performance. Yet when I have reviewed discipline protocols it is frequently obvious that they have been written to deal exclusively with matters of misconduct. The problem is that the two require distinctly different approaches. With matters of misconduct employees are disciplined with the expectation that whatever infraction has occurred will not happen again. Performance problems, on the other hand, are best dealt with by setting performance goals and then working with the employee over time to achieve those goals. Unacceptable performance does not generally involved an on and off switch. Rather it is a matter of growth and development. While an employee can be discharged for misconduct and/or for unacceptable performance, the path by which one arrives at the point of employment termination should be different.

Third, it is important to clearly distinguish between informal disciplinary acts and formal. Formal discipline (oral warnings, written warnings, suspensions) are usually less effective than the informal protocols (training, coaching, counseling and other softer forms of intervention) correcting and shaping employee behavior. For one thing, formal discipline is harder on the relationship between supervisor and subordinate and as such makes it more difficult to positively influence employee activities. But, formal discipline is frequently a legal or contractual necessity. My advice, do all you can informally before you move to the formal. Once you move to the formal it is generally very difficult to effectively utilize the informal.

Fourth, the culture of your organization is usually a stronger determinant of employee behavior then is your work rules and performance goals. Thus, disciplining employees may not be as effective towards changing behavior as the work you do to improve the culture; change the culture, change the behavior (this suggests another topic for an e-zine). At minimum what you need to be asking yourself when you discipline an employee is whether your other employees will support your decision to implement discipline or will they feel that your decision is unfair. While sometimes the perception that something is unfair is based on a lack of knowledge, where employees have the knowledge and your actions are viewed as inappropriate; then you have a much bigger problem than whatever you are attempting to address with the discipline.

Fifth, employee discipline tends to focus on eliminating what is not wanted. Their often seems to be an unstated assumption that if we eliminate what we don’t want, what is left will be what we do want. I doubt that this is true. If what we do want is an energized, enthusiastic and committed workforce does the discipline program help bring wayward employees into alignment with that objective? Or, does it focus on specific problems as opposed to the larger objective? You may find it advisable to benignly overlook certain problem areas while being diligent to pursue the larger goal.

Sixth, while I am a strong believer that informal tools are the best way to intervene into an employee problem, I want to be clearly on the record that you cannot ignore the formal tools if the problem has deteriorated to the point where it is clear that the informal approach will not work. When I ask human resource managers about the successful use of progressive discipline, the answer is almost always negative. They pretty much acknowledge that once they start into formal modes of discipline their goal is no longer to correct the problem but rather to satisfy whatever legal constraints there are on terminating the employment of the individual. My sense is that their reasoning is absolutely correct. If the problem by cannot be dealt with by coaching, counseling, a work plan, a memo of expectation, etc., then why do we think a two day suspension will change the employee’s basic approach to the workplace? From this perspective, therefore, the best approach I have seen to formal discipline is one found in a number of Teamster’s labor contracts. They call for termination of employment if an employee repeats an infraction, within a two year period of time, for which the employee has been previously given a written warning. The progression, then, calls for extensive informal efforts to work with the employee, followed by one written warning and then discharge.

Seventh, there is a quote from a Star Wars figure in a science fiction novel that I have often used when conducting training programs on employee discipline. It goes like this: “Always remember this; your enemy [misbehaving employee] is not wrong in his own eyes. If you keep this in mind you may make him your friend; if not, you can kill him [terminate employment] but without hate.” While recognizing that homicide is illegal in all 50 states, there is a huge amount of wisdom in this quote. I am oftentimes dismayed at the frequency with which the first principle (make the employee your friend) is ignored and instead we move directly to a vindictive action. While this is understandable within the context of the emotions that are sometimes created by serious employee misconduct, an immediate negative response will rarely bring about the desired impact on the employee and/or your work force. You can always move to discharge the employee but why not try something positive first?

I close this short essay on employee discipline by emphasizing the necessity to impose discipline “without hate.” I need say no more.

Next Month: Terminating for Absences

What options does an employer have when a supervisor begins a secret (or not-so-secret) relationship with a subordinate?

Inter-office dating is a fact of the workplace. While not the most optimal of situations, they can be innocuous enough when responsibly managed. A major problem arises when there is a differential in workplace power – when one has authority over the other. An asymmetric balance of power leads to questions of mutual consent. How can a subordinate that enters into a relationship with someone with power over them be argued to have given the same level of consent? Just as troublesome, when the relationship comes to light in the workplace the cries of bias and preferential treatment, whether real or imagined, can have terrible effects on employee morale and productivity.

What, then, can an employer do in the situation of the secret relationship… what are the options? Outright banning will not work, as it raises questions of privacy rights and may just encourage such relationships to stay underground. Remember, employers are just as liable for the fallout from relationships they’re unaware of as those going on under their noses. Keep in mind, firing one member of the relationship has proven to be legally questionable particularly if the supervisor is male and the subordinate female — a standing policy of firing the subordinate would (rightly) open the employer to allegations of sexual discrimination.

The answer, I believe, is in recognizing what an organization has a right to control and what might be considered improper interference. You have the right to control that which can be destructive to the organization. My recommendation is to craft and enforce a carefully written policy on personal relationships in the workplace. The policy needs to have at least two sections:

1. The first is a statement about the purpose and intent of the policy itself. Emphasize the fact that the policy is not to interfere in the personal lives of employees but rather to protect the employer against situations where there is an obvious and counter productive conflict of interest; guarding against circumstances that can create legal liabilities and reduce employee morale.

2. The second section needs to carefully describe the actions that are prohibited. The prohibition, however, cannot be against a personal relationship but rather against the hiring and/or supervising of a relative or close personal friend. The policy needs to particularly emphasize that employees are expected to reveal relationships where there is a conflict of interest (supervising a spouse or significant other, for example); secrecy is the big no-no.

Also, I have to confess to a certain reluctance with regard to the recommendation that one should write a policy on this issue. In general I am not a promoter of policy writing as my experience leads me to conclude that more often than not policies can get the employer in trouble. For one thing, it is always difficult to predict all of the different ways that the policy may have to be applied. As a result the policy may rise up and bite you when you are confronted with an unusual set situation. Additionally, employers all too often write the policy and then fail to enforce it. The unequal enforcement of a policy is fertile ground for plaintiff’s attorney. In this case, however, I feel that the policy is absolutely essential. Employees have a right to personal relationships, even in a superior — subordinate situation. It is not the relationship itself that is at issue. Rather it is the impact of that relationship on organizational behavior that must be addressed. This can only be managed through the development of a clear policy related to controlling the potential damage from those personal relationships that are impacting the organization.

Finally, when I consider the question that was asked it occurs to me that the “secret” relationship must have been reported by a member of the team to a higher level manager in the organization. Even without the policy, the employer has the right to confront the supervisor about any actions that compromise his or her effectiveness as a supervisor (notice that it is not the subordinate employee that one should confront). There are a number of actions that the employer can choose to do including moving one of the two parties to a different workgroup, or insisting that the subordinate employee’s performance evaluations and work assignments be under the direction of an outside supervisor. The bottom line is that the problem needs to be directly confronted.

Quote of the Month:

The aim of argument or discussion should not be victory, but progress.

Joseph Joubert

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Guidelines for the Use of Administrative Leave

A recent consulting activity raised the question of the appropriate use of administrative leave. Sometimes it may be necessary to place one of your employees on leave. The most common reason for doing this is to safeguard the employer during an investigation into allegations of misconduct. Administrative leave includes both the temporary removal of the employee from all job duties or the temporary re-assignment of an employee to a different job pending an investigation. Administrative leave is not a disciplinary action, and it should not harm the employee’s record or performance appraisal. If the investigation confirms wrongdoing on behalf of the employee, disciplinary action should be imposed following the investigation.

You, as the employer, may question whether the nature of the alleged infraction is significant enough to warrant placing the employee on administrative leave. The critical question is not the seriousness of the infraction, but rather the vulnerability of the employer. If the nature of the infraction is such as to create a potential liability for the employer if the employee continues to perform his or her duties during the investigation, then administrative leave is appropriate. For example, if you believe an employee is embezzling money from the organization, the minimum prudent response is to remove that employee from a position where he or she can continue to take money. Similarly, an employer would not allow an employee to continue to drive a school bus during an investigation into a drunk driving charge. Were an accident to happen, the liability would be enormous.

In implementing an administrative leave, there are a few basic rules to follow:

1. Your actions must be consistent with your personnel policies and/or your labor contract.

2. You should have a consistent policy. Paying one employee who is on administrative leave and not another could lead to legal action or allegations of disparate treatment. Also the employer should be clear about whether an employee can use any accumulated vacation or other paid leave to compensate for an unpaid administrative leave.

3. In making a determination of whether administrative leave is appropriate, you should consider the potential legal liability of allowing the employee to remain at work, the state of mind of the employee, and whether the employee could potentially cause more harm or disruption if he or she remains at work during the investigation.

4. The law does not require that you pay an employee when they perform no work. Most employers, however, find it wise to, at minimum, reimburse an employee for lost wages if he or she is exonerated. Otherwise you may find yourself dealing with a bitter employee.

5. If you call the employee in for an investigative interview, you must pay the employee for this time. I recommend a full day’s pay as an incentive for cooperation.

6. If an incident occurs during the workday, you should send the employee home with pay for the remainder of the day. If the employee is exempt from overtime, you should always pay the employee for a full day when they are sent home, regardless of whether the remainder of the leave will be without pay. Exempt employees by definition are not “hourly”, and employers should not dock their pay in any increment less than a full workday. Doing so may lead to challenges of the employee’s exempt status.

7. Be sure the employee is aware of how they will be kept informed of the status of the investigation. Employees should be told that they must be available during working hours to attend conferences or interviews related to the investigation. Also it’s a good idea to designate days and/or times that the employee should contact their supervisor or Human Resources to check in.

8. An administrative leave may be turned into a suspension without pay if the investigation establishes charges sufficient to justify a suspension but not sufficient to terminate the employee. “Time served” thus becomes the discipline and gets the employee back to work.

9. To avoid disputes later, always follow up with the employee in writing. Send a memo to the employee notifying them that they have been placed on administrative leave, the reason for the leave, whether the leave will be paid or unpaid, and how contact will be maintained during the leave. Also, if your labor contract or organizational policies provide for a hearing or conference with the employee, the memo should state the process and timelines for requesting such a process. Keep a copy of the memo in the employee’s file.

10. It is in your best interest, and the employee’s, to conduct the investigation as expediently as possible. Remember, you are either losing money to pay an employee to stay home, or creating a financial hardship for an employee who is home without pay.

The time to create a policy on administrative leave is not when an incident occurs. If you do not have a policy developed, you should consider creating one. Be sure that your policy is clear and utilized consistently and that your managerial staff are trained on the use of administrative leave for investigation of wrongdoing. Hopefully, you won’t need to use your policy, but it’s best to be prepared.

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Managing the Dysfunctional Employee

I was recently asked to make a presentation at an annual conference for public sector human resource management professionals. Specifically, I was asked to speak on the topic of Managing the Dysfunctional Employee. I thought it might be useful to those of you who receive this e-zine for me to repeat some of the key points made in that presentation. Obviously, the first place to start is with the point that dysfunction is a broad, difficult and ambiguous topic. That being said, I offer the following points.

1. As an arbitrator, I have always made a distinction between a discipline and/or a discharge case involving a matter of misconduct as opposed to unacceptable performance. One of the practical distinctions between the two is the extent to which the employer expects an immediate behavior change versus a situation where the employee is expected to grow into the ability to perform. For example, if you have an employee that you can prove is stealing from you or sleeping on the job, it is not likely that you will tell the employee that he or she has sixty days to stop stealing or stop sleeping on the job. To put the matter differently, with misconduct the employer has the right to insist on an immediate change in behavior and, if such a change is not forthcoming, to move to discipline including discharge. On the other hand, if the quality or timeliness of an employee’s work is substandard, it is reasonable to expect that the employer will provide a period of time and some assistance to help the employee develop the ability to meet performance requirements. Growing new skills or attitudes clearly takes time.
   
   
2. Most often, the “dysfunctional employee” is a performance problem, not a matter of misconduct. If the employee’s inappropriate behavior was a matter of misconduct, the situation would be clearer and more easily dealt with. A path could be started that would quickly lead to discharge if the employee failed to stop the undesired behavior. Because it is a performance problem, however, what most employers find themselves doing is attempting to coach the employee to bring about a change in performance, usually with little success (otherwise we probably would not use the word “dysfunctional”)
   
   
3. How then do you work with the employee to make a change? I always recommend starting with a positive approach and then moving to formal discipline, if that is necessary. One such approach, that I believe is often overlooked, is to focus on the culture of the employee’s work team. Is it a strong, positive culture that may be able, with the right processes, to reach out and draw the employee into compliance? This idea is the main focus of a new workbook that Martie Geltz and I have recently released called Supervisor’s Guide to Cultivating a Positive Culture (available at 800-807-6544).
   
   
4. Unfortunately, what marks or distinguishes a dysfunctional employee is that he or she is often resistant to positive performance change processes. Moreover, there is a negotiating principle that I find important when addressing the issue of a dysfunctional employee: offers of reasonableness, kindness and cooperation are often viewed as a weakness to be exploited or viewed as a subterfuge for an underlying hostile intent. Thus offers of collaboration are met with increased demands or hostility. As a result, any attempt to be conciliatory is useless unless it is framed within a context of what the employer will not do or accept – you must be able to say “no” with authority.
   
   
5. Since employee dysfunction is often exhibited through a game that is played with the employer, I believe that it is absolutely essential for each employer’s handbook to clearly enunciate positive expectations. For example, employees should be expected to interact positively with other employees, to be productive, to work in a manner that encourages productiveness on the part of other employees and to demonstrate concern about the safety and well-being of individuals that are being provided services. Check your employee handbook, your employee orientation program and your training programs to make sure that the emphasis on affirmative responsibilities is in balance with the emphasis on specific behaviors that are prohibited. Yes, you can terminate the employment of a highly productive employee who makes life miserable for other employees. You need to make sure, however, that employees cannot hide behind the phrase, “I do my job.”
   
   
6. One last thought, as depressing as it sometimes is and as much as you might want to reach out and provide assistance to an employee in distress, years of arbitrating cases and listening to expert testimony leads me to the conclusion that for some the only real change occurs when they hit rock bottom. The termination of employment is often one necessary step towards hitting rock bottom. Moreover, the failure to timely implement the termination often simply prolongs the issue and makes life miserable for management and fellow employees.

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