Managing Misconduct and Other Unsatisfactory Performance
The progressive discipline process provides a thoughtful and equitable method of addressing unsatisfactory performance or inappropriate employee behavior. The progression of steps incorporates a fair and reasonable opportunity to be successful before further disciplinary action is imposed.
I. Verbal Counseling/Coaching Conversations (Non-Disciplinary)
Timely counseling/coaching by the immediate supervisor is the initial step to mentor or coach performance improvement. The immediate supervisor should consult with a Human Resources Representative or Employee and Labor Relations Representative and make a checklist of items to address in a subsequent in-person meeting with the employee.
The checklist should include the following items and the meeting should address each as follows:
- Confirm or clarify expectations regarding expected behavior, performance or conduct.
- Identify and explain the specific performance deficit or behavioral concern. Be clear if you are discussing a potential situation and clarifying expectations or if you are asserting that a specific behavior problem in fact happened. If asserting that a specific action occurred, you will need to share the information on which your assertion is based.
- Invite and allow opportunity for feedback/input from employee.
- Provide a timeline and benchmarks, as well as resources for improvement (e.g. restatement of expectations, training resources, checklists, weekly feedback etc.). In the case of misconduct, immediate change should be expected.
- State that failure to improve may lead to further action on the part of the supervisor.
- Document conversation in the supervisory/management notes or file. Do not include it in the employee’s official personnel file.
II. Progressive Disciplinary Steps
Formal disciplinary action will typically begin after thorough and thoughtful counseling is completed and the employee has been given opportunity to demonstrate improved performance or lack thereof. The goal of progressive discipline is to place the employee on notice so that he/she understands that performance improvement is essential for continued employment. The progressive discipline also should state and/or clarify what is the appropriate level or form of performance.
The severity of discipline should increase with the repetition or seriousness of the violation. Formal disciplinary action usually begins at the lowest step in the progressive discipline process necessary to correct the performance deficiency or behavior. Employers should expect to use multiple corrective actions before suspending or terminating an employee.
At each disciplinary step, just cause to impose discipline must be established. The appropriate level of discipline administered by the employer must reasonably be related to the seriousness of the employee’s current offense. Employers should also consider the policies violated, and the nature and extent of the infractions when applying progressive discipline.
A. Determining Whether There is “Just Cause” for Discipline.
There should be just cause for the imposition of disciplinary action. “Just cause” means a legitimate business reason, such as wrongdoing or misconduct by the employee that gives the employer the right to discipline or terminate the employee. In other words, the disciplinary action is not arbitrary. Some questions that will aid in determining whether just cause exists include:
Did the employer have reasonable basis to conclude that a policy violation occurred and/or the employee’s job performance was unsatisfactory?
- Was the policy and/or performance expectation reasonable? Did the employee have knowledge of the expectation and potential consequences for non-compliance?
- Was the investigation fair, timely and objective? Was the investigation completed prior to making any decision related to discipline?
- Were the employee’s rights afforded to him/her during the investigatory process, e.g. any right to representation or opportunity to respond to the allegations at the Loudermill hearing prior to discharge? Were Weingarten representational rights also afforded to the employee?
- Was the level of proof gained through the investigation sufficient for the action contemplated?
If the answer to the first question is yes, what factors support the disciplinary decision as being appropriate in nature and severity?
- Has the employer applied disciplinary penalties consistently for similar offenses and without protected class discrimination?
- Were other relevant factors considered in determining the level of disciplinary action, e.g. employee work history, impact of the offense/error, mitigating and/or aggravating factors, potential for future success, etc.?
B. Investigation and Notice of Discipline
The immediate supervisor is expected to consult a Human Resources Representative or an Employee and Labor Relations Representative before conducting an investigation or taking action. If management establishes that just cause exists, the employee should be presented with a formal Notice of Discipline.
The Notice of Discipline should contain the following elements:
- Describe how management’s expectations were previously communicated to the employee, i.e., initial onboarding, subsequent counseling sessions, etc.
- Describe previous efforts to correct the performance/behavior (e.g., prior formal discipline)
- Describe the most recent event(s) warranting the current discipline
- The rule/policy violated
- The level of discipline being imposed
- Notice that continued failure to meet expectations or comply with rules/policies may result in further discipline, up to and including termination
- Signatures of supervisory authority and the date the discipline was imposed.
The Notice of Discipline should be distributed as follows:
- Original Notice of Discipline should be provided to the Employee
- Copies of the signed original notice should be provided to:
C. Termination of Employment
The immediate supervisor is expected to consult a Human Resources Representative prior to terminating an employee. As with other formal disciplinary measures, management must establish that the standards of just cause are met.
The supervisor should review the Involuntary Termination Toolkit and plan to meet with the employee accordingly.
Prior to delivering a Notice of Termination:
- Consider whether the Threat Assessment Team should be consulted. If so, incorporate their recommendations into this framework.
- Management must provide written notice to the employee that terminations and resignations in lieu of termination are public records, pursuant to Chapter 22.15 of the Iowa Code.
- Conduct a Loudermill hearing. Schedule a final meeting with the employee, inform the employee of the findings of the investigation and management’s conclusion that termination appears to be warranted. Provide the employee an additional opportunity to be heard in response to the findings. If the employee provides new information or if no mitigating or extenuating evidence is presented, caucus to consider the additional information and determine whether termination is still warranted or if further investigation is necessary.
- There is a gap between anything an employee says, even if it is nothing, and the presentation of the discharge notice. It is necessary to demonstrate that management did not have its mind made up when it walked into the room.
- Loudermill is considered a continuation of the investigation; therefore what occurs in the Loudermill meeting, as well as all of the facts, need to be considered to come to the conclusion an employees should be discharged or not.
- Although the Chapter 22 notice may be provided earlier [e.g., at the investigatory interview], the Loudermill hearing is the final opportunity to meet the legal requirement of presenting the notice prior to termination. As a result, it is good practice to present a Chapter 22 notice at the Loudermill hearing, regardless if it was previously presented to the employee.
Additional Considerations for terminations:
- Conduct Loudermill and termination meetings outside of the normal work area (i.e., minimize opportunities for humiliation of the subject employee).
- Do not allow the terminated employee to return to his/her workstation unattended. If there are items at the work station that the employee requires immediately (e.g. car keys), a management representative can retrieve such items on the employee’s behalf. Additional personal belongings can be gathered by management and made available at a future date. Contact Employee and Labor Relations for assistance, if needed.
- If there is concern that the employee could become distraught/disruptive, convene the meeting at USB with the Threat Assessment Team present.
When necessary, the Notice of Termination may be sent via certified mail, known personal email account, or by other means.
- The Notice of Termination should be distributed as follows:
- Original Notice of Termination should be provided to the Employee
- Copies of the signed original notice should be provided to:
A progression of discipline may not be appropriate in all instances. Some violations are of such a serious nature that they warrant severe disciplinary action, up to and including discharge, without a progression of discipline such as when health or safety is at risk or a crime has been committed.
Supervisors may impose more severe discipline depending on the individual circumstances after consultation with their Senior HR Leader or Employee and Labor Relations.
III. Probationary and At-Will Employees
Progressive formal discipline and the establishment of just cause are not necessary for staff in a probationary or at-will employment status. However, management must be able to identify a “neutral” business case to establish (i.e., to rebut an allegation) that the basis for the decision was not discriminatory. A progression of coaching/counseling conversations may be appropriate for individuals in these employment statuses, but it is not necessary to meet the tests of just cause. In handling performance or behavioral concerns for these employees, supervisors and Human Resource Representatives are expected to consult with their Senior Human Resources Representative to review the individual circumstances and application of progressive discipline.
- ELR Templates (e.g. Clarification of Expectations, Notices of Discipline, Performance Improvement Plan)
- ELR Involuntary Termination Toolkit/Checklist
- ELR Public Records Notice Template
- ELR Administrative Leave Template
Please contact University Human Resources Employee and Labor Relations (email@example.com or 319-335-3558) with any questions or to gain access to these resources.