discipline discharge

IPMA – HR CONFERENCEPortland, Oregon

May 5, 2006

EFFECTIVE DISCIPLINE & DISCHARGE

I. INTRODUCTION

Discipline must be maintained in any culture, including the culture of any private sector organization. An employer has a legitimate right, if not an obligation, to expect employees to meet acceptable standards of performance and behavior, including maintaining satisfactory attendance, performing work in a careful, accurate and efficient manner, following job instructions, following safety rules and practices, and accepting job assignments or instructions from supervisors.

As in most cultures, most individuals conform to the expected standards of performance and behavior. However, when an employer's expectations are not satisfied, the need for a disciplinary process arises. When this occurs, all too frequently, employers typically impose improper discipline, delayed discipline, or no discipline at all. Ineffective or improper discipline of employees contributes to the filing of costly litigation, including wrongful termination and EEO suits. It also results in decreased productivity and poor employee morale and the increased filing of grievances.

On the other hand, effective or proper discipline usually has the following positive impact:

Increased supervisory self-confidence;

Earlier employee problem resolution;

Increased productivity and employee morale;

Reduced turnover in absenteeism due to sickness, disability, etc.;

Greater respect for management;

Improved labor relations climate; and

In summary, employees generally recognize that through the employer’s approach to discipline, an employer displays its true attitude about employees and productivity. Consequently, the employer's disciplinary programs create either

Kathy A. PeckWilliams, Zografos & Peck

PO Box 547, Lake Oswego, OR [email protected]

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trust or mistrust and produce either positive or negative results in the arena of human relations.

A. WHY DISCIPLINE EMPLOYEES?

There are two basic reasons why an employer should discipline employees:

1. Reinforce Standards

To reinforce standards of conduct and to help an individual become a better employee by reminding the employee of the need to meet acceptable standards of performance and behavior.

This concept is based on the premise that employees are and must be responsible for their own behavior. Furthermore, the level of expectation of standards that is communicated to the employees will usually determine the standard of employee performance and behavior.

2. Deter Improper Conduct

To deter employees from engaging in improper conduct or violation of the rules or regulations in the future. Conversely, the imposition of discipline on those employees who violate the rules or regulations will serve to reward those who obey and adhere to the rules and regulations; and

According to the more traditional approach, discipline is used as a means to punish employees for violation of rules and regulations. Do not subscribe to this viewpoint as being a legitimate reason for discipline. Although individual employees may view discipline as punishment, punishment is not our goal. The goal is to change an employee's deficient behavior to effectuate a positive change. Consequently, supervisors should focus on this goal.

B. SELF-DISCIPLINE

Obviously, the best discipline is self-discipline. The normal human tendency is to do one's share and to follow rules. Once employees know what is expected of them, they will generally regulate their own behavior so that their performance is productive and will conform to standards.

Self-discipline is based on the concept that employees prefer success to failure. Self-control and self-discipline are always preferable to control or discipline imposed by an outside force. However, on occasion it becomes



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necessary for a supervisor to influence the behavior of employees through the use of discipline.

C. RELUCTANCE TO ADMINISTER DISCIPLINE

Applying discipline often times places the supervisor in a dilemma. How can supervisors expect employees to continue to regard them as a source of assistance, when discipline by nature is painful? Can supervisors impose discipline without generating resentment? Yes -- through what is called the "red-hot stove rule." This rule draws an analogy between touching a hot stove and undergoing discipline. You learn your lesson quickly because:

The burn is immediate. There is no question of cause and effect.

The employee had warning. If the stove was red-hot, the employee knew what would happen if (s)he touched it.

The discipline is consistent and impersonal. Everyone who touches the stove is burned.

A person is burned not because of who (s)he is, but because (s)he touched the stove.

In short, the discipline is directed against the act or performance, not against the employee.

D. THE “GOLDEN RULES” OF DISCIPLINE

Supervisors who are perceived by those they supervise as being unfair are ineffective in motivating employees to make necessary changes in their behavior. If an employee does not trust his/her supervisor to be fair, that employee will see little or no purpose in correcting their behavior. In these situations employees tend to think “Why should I bother? I still have no assurance that I will be treated fairly even if I improve my attendance, work harder, etc.”

In order to be effective, a supervisor must be respected by his/her subordinates. In order to be respected, a supervisor must be fair. This means exercising good judgment in deciding when and how to discipline employees. It also means treating all employees, regardless of the nature of their work-related problems or deficiencies, like intelligent adults. In other words, treat employees like you would want to be treated. Do not attack or criticize the individual. Focus on the conduct to be corrected.



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Choose your words carefully. Supervisors should never belittle or talk down to an employee.

To assist supervisors in developing and maintaining a fair and respectful approach to discipline, follow these "Golden Rules:"

1. Rule of Immediacy

The supervisor should begin the disciplinary process as soon as possible after a violation of the rule is noticed.

The more quickly the discipline follows the violation of the standard, the more likely it is that the offending employee will associate the discipline with the offense rather than the supervisor imposing the discipline. An immediate reaction also minimizes an employee's opportunity to insulate himself/herself from discipline by engaging in protected activity before discipline is communicated. For instance, some employees will sense that discipline is forthcoming and will report a workers' compensation injury, complain of sexual harassment, etc. When this happens it is more difficult to discipline because questions arise regarding the motive for the discipline.

2. Rule of Consistency

Should two employees violate the same standard, and one employee is disciplined more severely than the other, naturally there will be cries of favoritism. Consequently, one of the quickest ways for supervisors to lose employees' respect and to lower employee morale is to impose discipline in an inconsistent way.

Management should always keep in mind the educational function of corrective discipline. Consistent discipline helps to set limits: It lets employees know what they can and cannot do. Inconsistent discipline inevitably leads to confusion and uncertainty. When some rules are permitted to go unenforced, employees may either (1) decide to ignore all rules, or (2) become confused about what is really required of them.

It is very important, however, that supervisors understand that employees cannot realistically be treated like “widgets.” It is rare when two disciplinary problems are exactly alike. For instance, a supervisor’s reaction to a newly hired employee’s failure to report for work in a timely fashion and the supervisor’s reaction to the failure of an ordinarily dependable employee to report for work



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may call for different degrees of discipline. Distinctions might also be justified if one employee’s failure to call in is attributable to carelessness or laziness, and the other employee's reason is attributable to bona fide family emergency or other legitimate reasons.

However, exceptions to the consistent application of discipline should be limited to extraordinary situations. The exception should not, in other words, “swallow the rule.” Also, when there is a well-deserved departure from standards, the employee should be told that (s)he is being given extra consideration and that his/her conduct would normally result in a more severe disciplinary action. The action taken should, in turn, be documented as “the exception.” This will preserve the record in the event a less deserving employee commits the same or similar infraction and receives harsher treatment. It will also preserve the validity of the rule.

The bottom line is that when an employee commits a disciplinary violation or falls below the employer's performance standards, that problem should always be addressed, regardless of how valued and long term the employee may be. The degree of discipline taken may, however, vary in unusual situations. This approach represents a workable compromise. It recognizes the need for consistency in addressing similar employee problems, while at the same time allowing for the fact that employees are not widgets.

3. Rule of Impersonality

Good supervisors encourage subordinates to express themselves freely and try to play down differences in employment status without becoming so closely aligned with those they supervise that they become ineffective in enforcing Company standards. Such supervisors build up the feeling that they and the employee are on the same team. Does corrective discipline seriously endanger this relationship? It may. In fact, the disciplined employee might easily say, “That so-and-so. I thought we were friends.” It is not easy to impose discipline without causing the disciplined employee to feel resentful. But the supervisor can minimize the danger to the relationship by imposing discipline as fairly and impersonally as possible.

Discipline is most effective and has the least negative effect on individuals if the individual feels that his/her behavior at this



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particular moment is the only thing being criticized, and not his/her total personality.

4. Rule of Positivism

Supervisors should always keep in mind that the proper function of discipline is to rehabilitate, not punish an employee.

In short, effective discipline requires a clear communication that the responsibility for the correction rests with the employee, not the supervisor. When this message is coupled with a sincere expression of confidence in the employee's ability to meet this challenge, it is more likely to produce positive change. Supervisors who use this approach revert to the role of a “coach” after advising the employee of the expectations that will be required for future conduct. The vast majority of employees react better to this approach than the approach of a supervisor who is acting in the role of an “enforcer.” The reason for this is that the coach allows an employee to return to work with the expectation that (s)he can succeed in correcting his/her deficiencies. Enforcers do not typically convey this vote of confidence. Consequently, it is more likely that the employee will return to work with the feeling that the supervisor does not believe improvement can be made.

E. THE POWER OF DOCUMENTATION

Virtually every study on jury behavior confirms the conclusion that jurors absorb more from testimony in the form of written exhibits than oral testimony. Employers who face employees or ex-employees in employment litigation have a picture to paint to the jury, a labor arbitration or other trier of fact. This “picture” hopefully portrays employment action that is firm, fair and motivated by legitimate, non-discriminatory consideration. Documentation is invaluable in helping an employer paint this picture, particularly in protected activity cases where timing can be an employers’ “worst enemy.”

Documentation also serves the secondary purpose of calming the nerves of prospective supervisory or management witnesses by providing them with tools to refresh their memories about incidents and meetings that occurred and sometimes years before a trial or arbitration.

There are two basic types of documentation that are critically important in the employment arena:



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1. Documentation establishing progressive discipline for non-serious violations.

This type of documentation is appropriate for performance problems, attendance concerns and other conduct that is not sufficiently serious to justify the suspension or discharge. The goal of such documentation is to show that an employee was notified of his/her substandard behavior and was given a reasonable opportunity to correct that behavior. This type of documentation generally consists of well-drafted disciplinary notices which, ideally, incorporate the employees’ acknowledgment of the problem and commitment to improve.

2. Documentation establishing an objective investigation and proof of “guilt” for serious violations.

This type of documentation is appropriate when an employee’s behavior raises concerns that he/she may have engaged in conduct justifying suspension or discharge. The goal of such documentation is to show that an employee’s conduct was objectively and fairly investigated and the employee was given a meaningful opportunity to tell his/her “side of the story.”

F. DISCIPLINARY INTERVIEWS

Employees should NEVER be disciplined or discharged before they have been given an opportunity to explain their side of the story. This practice is not only fair and logical because of due process obligations, but is also important because employees who do not “go on the record” early in the process have the unlimited opportunity to add to their explanations to make their conduct more believable. Similarly, employees who fear discipline or discharge may attempt to insulate themselves from such action by adding claims of protected activity. Again, an employee may claim that the real reason her performance was inadequate is because her supervisor was sexually harassing her or the real reason his attendance was poor is because he hurt his back lifting something on the job the previous week. Although the same assertions can be made regardless of whether the employee was given a chance to tell his/her story before disciplinary action was taken, it is more difficult for the employee to avoid the inference that these claims were “made up” after the fact if (s)he was given a chance to speak and did not. As a general rule, the earlier in the process that the employee tells his/her side of the story, the more truthful the story is told.



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In its opening stages, the disciplinary interview is not much different from most other forms of interviews. A supervisor should first, state the problem as (s)he sees it, then encourage the employee to state his/her point of view. Let the employee tell his/her story. Give the employee every chance to explain. Try to draw the employee out and try to discover the real story. Do not ask for excuses, but focus on the need to meet acceptable standards. Throughout the interview, present the view that the particular standard being violated (whether a performance standard or a disciplinary rule) is a reasonable standard and one which the employee is capable of meeting and following in the future.

1. Tips for conducting an investigation.

Given the wide variety of workplace issues that may lead to an investigation, it is difficult to provide a format for questioning that will apply in all situations. However, the following general guidelines may be of assistance to you in conducting meaningful and effective inquiries and investigations:

Before you begin an inquiry, develop a general “game plan.”

Although this plan may change as new information becomes available, it is important to approach the investigation with reasoned objectives. Part of this procedure involves determining the sequence of witnesses to be interviewed and conducting back-to-back interviews, as appropriate to avoid inappropriate sharing of fictionalized versions of the facts.

Whenever possible, interviews should be conducted with two management or supervisory employees present.

Departures from this rule may be appropriate when personality factors indicate the interviewee will be more open with only employer representative present or other workplace practicalities prohibit the presence of two management or supervisory employees.

Tailor the scope of your investigation to legitimate work-related matters.

Utilize leaves pending investigation as a means to enable adequate investigation of conduct that may lead to discharge.



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Never discharge an employee when you are angry or do not have a complete and comfortable understanding of the facts. Comply with due process obligations.

Do not rely on rumors or second-hand information to discipline or discharge an employee.

Never discipline or discharge an employee before they have been given an opportunity to explain their side of the story.

This practice is not only fair and logical, but is important because employees who do not “go on the record” early in the process have the unlimited opportunity to add to their explanations to make their conduct more believable, even when it is not truthful.

2. Effective Interviewing Techniques

When interviewing witnesses, particularly witnesses in harassment or other employee misconduct investigations, carefully document their responses.

Control the pace of the interview as necessary to take notes of the information being provided.

Learn to separate first-hand information hearsay and rumor.

Think of “hearsay” as second-hand information (this is information coming from someone who did not directly see or overhear what they are reporting, but instead, heard it from someone else.) Although hearsay and rumor may lead to other individuals to be interviewed, base your employment decisions on only first-hand credible information. Get in the habit of asking: “Were you there?” “Did you see that?” “Did you hear that?” Sometimes people share information that makes it sound like they have first-hand information, when they are only repeating what they heard from someone else.

Develop a “storybook” questioning style, e.g. “What happened?” as opposed to a questioning style that allows the person being interviewed to provide “yes” or “no” answers.



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Gaps in the interviewee’s story may be followed up with specific questions about who, what, when, where, witnesses, etc.

Recognize the value of silence.

If a witness is struggling to answer a question, don’t rescue him/her, wait for a response. If necessary, repeat the question.

Advise all of those interviewed not to discuss the subject matter of the interview with others pending the investigation.

If for any reason you feel the individual being interviewed is not being honest, re-ask selected questions at a later time.

Use documentary evidence.

For an example, timecards, expense reports, etc. whenever appropriate to buttress your questions.

Be prepared for hostile or hesitant witnesses.

Don’t promise confidentiality when you cannot, as a practical matter, deliver true confidentiality.

A typical example of misplaced promises of confidentiality involves sexual harassment investigations. A promise of absolute confidentiality generally conflicts with our legal obligation to take prompt and appropriate remedial action.

Remember to ask the employee who is the subject of the investigation to identify anyone (s)he can think of who may have a bias against him/her.

Document non-responses as well as responses.

Wrap up an investigatory interviews by asking the individual being interviewed if (s)he has any other information relevant to the inquiry.

Again, document non-responses as well as responses.



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G. THE POST-DISCIPLINARY PERIOD

After disciplining employees, supervisors may understandably tend to avoid them or to alter their attitude toward them in subtle, hardly noticeable ways. But these shifts in attitude are particularly dangerous, for they generate corresponding modifications in the employees’ attitudes. Eventually, the whole relationship may be destroyed. In contrast, if supervisors treat the employees as they always have, it indicates that it was the performance or act that was punished, not the employee, and the relationship may not be negatively impacted.

H. DISCIPLINE WITHOUT PUNISHMENT - MOTIVATIONAL DISCIPLINE

Disciplinary approaches that treat employees as children who must be punished for violating the rules, don’t work. Employees who are disciplined using these tactics tend to respond with resentment, apathy or anger, causing a decline in morale and productivity. Furthermore, supervisors who view discipline in this way tend to avoid imposing discipline because of its painful or unpleasant nature. In the meanwhile, they create an “anything goes” climate.

Discipline which focuses on future expectations is much more effective than discipline which focuses on past wrongdoings. A future oriented “you can do it” disciplinary approach tends to provide an employee with a positive challenge to improve his or her performance. A negative “this is how bad you’ve been in the past” approach, on the other hand, tends to confirm an employee’s own view of the futility of his efforts to improve. Instead of correcting employee behavior, negative oriented early disciplinary steps become a self-fulfilling prophecy. The employee believes you have no faith in his/her ability to bring his performance to the standards required and consequently makes no meaningful effort to improve. Instead, he jus “hangs on,” until things get so bad that you decide there is no alternative to discharge. Unfortunately, by that time, the employee has succeeded in lowering the performance standard for all the employees he works around.

This approach is called “positive” or “motivational” discipline. Instead, it is a way of communicating progressive discipline. As distinguished from the more traditional approach, as positive discipline focuses on individual responsibility and decision-making instead of disciplinary penalties or punishment. This “problem-solving” approach to discipline is based upon the concept that employees are adults who prefer success to failure. It is also founded on the simple belief that the primary responsibility for complying with employer standards rests with the employee, not the supervisor.



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Managers and supervisors who use positive disciplinary techniques in communicating disciplinary action will find that discipline is easier to communicate and more effective. They will also find that their post-disciplinary contacts with the disciplined employee are less awkward.

The elements of positive discipline which should be incorporated into disciplinary discussion are as follows:

1. Remind the employee of the need to meet acceptable standards of performance or behavior in the area in question.

Do not berate the employee or focus on the fact that future occurrences will result in more serious disciplinary action. Although it is important for an employee to be put on notice of the consequences of a failure to correct the problem, this message should not be the focus of your discussion.

2. Obtain the employee's agreement to correct the performance deficiency or behavior in questions.

Although the employee may deny that (s)he deserves to be disciplined for his/her performance or behavior, few employees can deny the importance of complying with acceptable standards in the future, i.e. getting to work on time; not stretching breaks; completing work assignments on time; etc.

Gaining Agreement: The single most important objective of a disciplinary discussion is to gain the employee's agreement to correct the problem. This agreement is important for two reasons. First, the employee is more likely to improve if (s)he agrees to it than if compliance is imposed on him/her. Second, and more important, if the problem continues and another disciplinary step is required, the subsequent discussion will focus not only on the continuation of the original problem but also on the employee’s failure to honor his agreement -- a much more serious concern.

3. State the specific change(s) that are needed.

4. Express confidence that the employee will solve the problem as a result of discussion.

The focus of the discussion should be on the future, not the past. There is no substitute for a “you can do it” message.



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I. THE “JUST CAUSE” STANDARD

The guidelines arbitrators1 generally use to determine whether an employer had just cause for disciplining and/or terminating an employee are as follows:

Was the employee adequately warned of the consequences of his/her Conduct?

The warning may be given through a distribution of rules and/or prior oral or written warnings.

Was the employer’s rule reasonably related to efficient and safe operations?

Did management investigate before administering the discipline?

The investigation must be made before the decision to discipline is made. Where immediate action is required, the best course is to suspend the employee with pay pending an investigation.

Was the investigation fair and objective?

Did the investigation produce substantial evidence of proof of guilt?

It is generally not required that the evidence be conclusive or “beyond reasonable doubt,” except where the alleged misconduct is of such a criminal or reprehensible nature as to stigmatize the employee and seriously impair chances for future employment.

Were the rules, orders and penalties applied even-handedlyand without discrimination?

If enforcement has been lax in the past, management cannot suddenly crack down without first warning employees of its intent.

In these circumstances it is generally advisable for the employer to “slate clean,” i.e. notify employees that effective on a certain date supervisors will begin strictly enforcing the standard in question. Written notice is preferred.

1 These guidelines are also useful as a checklist for avoiding employment discrimination and other legal claims, even for “at will” employees.



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Was the disciplinary action taken reasonably related to the seriousness of the offense and the employee's past record?

If one employee’s past record is a significantly better and/or longer term than another, an employer properly may give employee a lesser degree of discipline than the other employee for the same or similar offense. It is important that supervisors do not use the presence of mitigating circumstances as an excuse for lax or inconsistent enforcement of rules. The exceptions should be rare and should not be allowed to swallow the rule. Supervisors should also use care in documenting the legitimate, nondiscriminatory reason(s) for departures from normal standards of enforcement.

J. WHAT MAKES A SUCCESSFULLY ADMINISTERED DISCIPLINARY PROCEDURE?

Remember that for every employee who is discharged, there are lots of other employees watching to see why and how the employee is discharged, and forming their attitudes toward management accordingly. These attitudes affect productivity and morale. Although, not all our employees are covered by a collective bargaining agreement “just cause” standard, as a company we strive to make good decisions.

It is important, then, that discipline policies be carefully administered. A study of successfully administered policies reveals this pattern:

1. Disciplinary rules are carefully explained to the employees.

This is especially important in the case of new employees. Orientation sessions, employee handbooks, bulletin board notices and many other forms of bringing rules to the attention of employees are used.

2. Violations of existing rules are not condoned.

Discipline should be administered in each case, even though this may not be the full penalty allowed. If a rule is allowed to fall into disuse, and management intends to tighten up on enforcement again, employees should be given full notice of the change in policy. This “slate cleaning” technique is a good way to correct lax enforcement.

3. An investigation is conducted to determine if a discharge decision is supported by facts.

Witnesses are interviewed, their statements recorded, and careful investigation made to see that both sides of the story are available and



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fairly presented. Circumstantial evidence is only relied upon if it is convincing circumstantial evidence; personality factors and unfounded assumptions are eliminated.

Supervisors should never make a snap decision. If there are legitimate reasons for removing an employee from active employment, place the employee on suspension pending investigation.

4. Listen to the employee’s side of the story.

As noted previously, this is important for numerous reasons. First, because it is the fair thing to do. Second, because it is important to have the employee’s input before making a decision. Third, because by listening to the employee, you can lock in his/her story. Lastly, juries and judges do not like employers who fail to give an employee this opportunity before making a discharge decision.

5. Before disciplinary action is taken, the employee’s past record is taken into consideration.

A good work record and long seniority are viewed as factors in the employee’s favor, particularly where a minor offense is involved, or where it is a first offense. Arbitrators are particularly prone to consider such evidence.

6. All management employees and particularly first-line supervisors, must know and carefully observe disciplinary policies and procedures themselves.

7. Discipline short of discharge should be used whenever appropriate.

Discharge is the “capital punishment” of the employer-employee relationship. Therefore, it is important for supervisors to understand that the judges, juries, administrative agencies, and arbitrators who review an employer's discharge decisions tend to scrutinize the decision. In cases where the employee was given a fair opportunity to correct the problem and failed to respond, the sympathy these triers-of-fact feel for an unemployed ex-employee can be more easily dissolved. The positive discipline approach is also designed to provide employees a fair opportunity to correct their deficiencies and, at the same time, document acknowledgment of their deficiencies and commitment to correct.

K. GENERAL TIPS FOR AVOIDING LIABILITY



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1. Do Not Say What You Do Not Mean . . . the Dangers of “Loose Lips”

Many employment discrimination and other employee claims become viable legal causes of action because a supervisor or manager made a stereotypical or derogatory comment about members of protected classes or employees who engaged in protected activity, i.e., women, older employees, Afro-Americans, users of the workers’ compensation system, etc. Even if the sentiment reflected by the comments is not used as a basis for making an employment decision, a skillful plaintiff's attorney can use these comments to create the perception that discriminatory animus does exist.

2. Do Not Allow Supervisors to Call a Discharge a Layoff

Supervisors struggle with implementing discharge decisions. Even when it is imminently clear that the employee in question deserves to be discharged, supervisors often worry about the impact a discharge will have on an employee’s family. For these reasons, supervisors have been known to soften the message by telling an employee that (s)he is being laid off. Layoffs are appropriate only when there is a bona fide reduction in the work force, not as a technique to rid an organization of a poor performer without complying with customary progressive disciplinary procedures. Supervisors who use this tactic to avoid complying with progressive discipline or simply to avoid delivering a difficult message expose their employers to a variety of employment law claims.

3. Always Listen to the Employee’s Side of the Story - Even with Probationary Employees

Supervisors should never make a snap decision before disciplining an employee. The importance of conducting an investigation increases when an employee is being considered for termination. If there are legitimate reasons for removing an employee from active employment, place the employee on leave pending investigation. Paid leave is required if the employee has a liberty or property interest in his/her job. Witnesses should be interviewed, and relevant documents, including information related to the employee's past record, should be compiled before an employee is confronted with potential disciplinary action.

Employees should NEVER be disciplined or discharged before they have been given an opportunity to explain their side of the story. This practice is important for a variety of reasons. It is not only fair and logical but is important because employees who do not “go on the record” early in the process have the unlimited opportunity to add to their explanations to



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make their conduct more believable. Similarly, employees who fear discipline or discharge may attempt to insulate themselves from such action by adding claims of protected activity. An employee may claim that the real reason her performance was inadequate is because her supervisor was sexually harassing her or the real reason his attendance was poor is because he hurt his back lifting something on the job the previous week. Although the same assertions can be made regardless of whether the employee was given a chance to tell his/her story before disciplinary action was taken, it is more difficult for the employee to avoid the inference that these claims were “made up” after the fact if (s)he was given a chance to speak and did not. It is also more difficult for the employee to add a retaliation claim to the list of potential causes of action, e.g., a claim that (s)he was discharged because of his/her protected activity. As a general rule, the earlier in the process that the employee tells his/her side of the story, the more truthful the story is told.

Lastly, failure to provide an employee with a meaningful opportunity to tell his/her side of the story will lead to a due process violation if the employee in question is deprived of a property or liberty interest in his/her job.

4. Document Personnel Decisions

Virtually every study on jury behavior confirms the conclusion that jurors absorb more from testimony in the form of written exhibits than oral testimony. Employers who face applicants, employees or ex-employees in employment litigation have a picture to paint to the jury. This “picture” hopefully portrays employment action that is firm, fair and motivated by legitimate, non-discriminatory considerations. Documentation is invaluable in helping an employer paint this picture.

Documentation also serves the secondary purpose of calming the nerves of prospective supervisory and management witnesses by providing them with tools to refresh their memories about incidents and meetings that occurred months and sometimes years before trial.

5. Address the “Bad Attitude” Employee

Employees who are negative, manipulative or back stabbing tend to erode or even destroy morale among other employees in their work unit. Low employee morale causes dissension which, in turn causes increased legal claims, e.g. grievances, stress claims, complaints of discrimination and harassment, etc.

Employees who demonstrate these behaviors should be notified, in clear



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and straightforward terms that such behavior is unacceptable, e.g. that employees are expected to be polite and cooperative in their contacts with one another. Specific examples of unacceptable behavior should be conveyed.

6. Select the Right Reason for Discharge

Generally, when there is a solid reason for terminating an employee, - e.g. falsifying an employment application; gross insubordination; serious sexual harassment; etc., that reason should be cited as the same reason for termination. In the unlikely event two solid reasons exist for terminating an employee, both reasons should be cited as independent justification for termination.

Employers who “throw in the kitchen sink” by citing numerous reasons for termination that other employees have not been terminated for committing, merely raise employment discrimination issues. These types of non-dischargeable offenses may be cited as lack of reason for mitigating the discharge decision, but not as causal factors.

7. Comply with Due Process Obligations

The Fifth and Fourteenth Amendments provide that no person shall be deprived of liberty or property without due process of law. To be protected by this language, an employee must establish that (s)he has either a “liberty” or “property” interest that may be impaired if (s)he is suspended or discharged.

Once a property or liberty interest is established, a public employee has the right to certain pre-deprivation procedural requirements. The nature and extent of pre-deprivation requirements are subject to a balancing test and vary depending on the nature and reasons for the action taken and the availability of post-suspension/post-termination hearing procedures. As a general rule, the pre-termination hearing rights do not require a full evidentiary hearing prior to an employee’s termination, but instead require that an employee provide the employee with notice of the infraction and a meaningful opportunity to fairly address those allegations and cross-examine. This obligation generally requires:

Notice of the charges against him/her. The notice must be sufficiently clear to allow the employee an opportunity to refute them in a pre-termination hearing. See Payne v. Department of Commerce, 61 Or. App.; 565 P2d 361 (1982). (Pre-termination notice did not comply with due process requirements. Notice did



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not indicate dates, parties involved or the kind of inappropriate activity employee was supposed to have engaged.

Notice of the sanctions being considered.

An opportunity to refute the charges either orally or in writing before someone who is authorized to make or recommend a final decision.

8. Recognize First Amendment Issues

The discharge or suspension of a public sector employee for exercising protected speech, association or religious rights is unconstitutional and actionable under §1983. These rights are not absolute. As a general rule, speech that concerns public policy is more likely to be protected than speech involving personal employment related matters. In determining whether an employee’s first amendment expressions are protected, the courts will balance the interests of the employee “as a citizen in commenting on matters of public concern and the interests of the employer.” Pickering v. Board of Education, 391 us 563 (1968).

9. Comply with “Garrity” Obligations

When a public sector employee is being investigated for conduct that may constitute a crime, that employee is protected from self-incrimination. In order to avoid violating the employee’s self-incrimination rights, the employee must be issued a “reverse Garrity” notice. This notice compels the employee to answer questions that may be incriminating in an employment investigation in exchange for the promise that his/her answers will not be used in a criminal proceeding.



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