I had a call from a client last week asking about whether there was a good format to use for drafting a disciplinary letter to give to an employee.  I advised her there was and suggested the following format:

  • Start with an accurate statement of the facts including: what happened, when it happened, etc… Make sure it is factually based and does not include opinion or judgment.  If a workplace policy or safety violation occurred, it should be referenced.
  • Describe any previous problems or issues, and what happened as a result (if anything). Be specific about dates and consequences such as you were counseled about …, or you were reprimanded, or you were retrained on this same problem etc…
  • Describe the impact the misconduct or performance problems have on the workplace.  The impact could be financial, related to staffing, safety, disruption of work production etc…  An example would be; “As a result of you being late to work, other employees needed to fill in for you until you arrived.  This meant they were not able to complete their own work.”
  • Clearly explain the expected behavior or performance that must be achieved to be successful.
  • Finally, the conclusion should state what will happen if the employee does not improve or change their conduct.  For example: “Future misconduct may result in further discipline, including termination from employment.”

A clearly drafted disciplinary letter helps to document an employee’s misconduct or performance deficiency and can help avoid future litigation claims.  It also gives clear direction to the employee about what is expected in the future and the potential consequences for failing to make the identified changes. 

Photo by: MCruz

Last week, I looked out my office window and noticed all kinds of icicles hanging off the roof. One was particularly large, and grew even larger this week with the melting and re-freezing common in Minnesota in February. I nicknamed it, “The icicle of death.” I decided it probably wasn’t a good thing to have hanging off the roof, so with the help of my law partner, Marylee, we removed the window screen and knocked down the 6 foot behemoth.

 A problem employee can be a lot like that big icicle. He or she starts out causing small problems at work. The employer hopes it will get better and takes no steps to address the small problems. Eventually, the employee starts causing big problems that branch out and affect other employees at the business. When the employer decides they need to take some action, they may be limited because they have done nothing previously.

Employees should be put on notice when they are doing something inappropriate or against policy. If an employer turns a blind-eye to the small issues, eventually it grows to be a larger issue, requiring more time, expense, and trouble than if the problem was constructively addressed early.

“The icicle of death” would have eventually disappeared on its own in about 6 or 7 weeks with the coming of spring. In the mean time I have no idea what type of damage it could have caused to the roof and eaves. By dealing with the icicle now, I prevented future damage to my office suite. If businesses don’t address employee problems when they are small, damage is likely to result. Don’t ignore problem employees and hope they will disappear, address issues as they arise.

 

I remember the 2010 Vikings and Saints NFC Championship game like it was yesterday. I was at my cousin Vicki’s house with my extended family, glued to the big-screen television, hoping Brett Favre would lead the team to the Super Bowl. We have had quite a long dry spell in Minnesota, since the days of Coach Bud Grant and the Purple People Eaters. The 2009 season was like a fairytale, and we were so hopeful to break the Super Bowl curse plaguing our team.

My vivid memories of the game are still quite visceral, and were shared by all those who watched the slaughter with me. We all cringed and groaned each time the Saints wiped Brett Favre off his feet. We shouted and shook our fists in the air, wondering whether the referees were seeing the same viciousness we were, and each time Favre got up and staggered back to the line. The camera panned to Favre’s wife and daughter in the box seats, and we knew things were bad. It is only now we know the brutal hits were part of a bounty system. 

The Saints team culture had completely lost focus on the game of football, and thrown out the gentlemen part of sportsmanship. In place was a pay for performance system, rewarding players for vicious hits on opponents.  The Pioneer Press reported Saints players were paid, “$1,500 for knocking someone out of the game, $1,000 for getting a player carted off the field.”

Football is big business. I am glad to see NFL Commissioner Roger Goodell took the problem seriously by investigating the allegations and issuing the largest fines and sanctions in NFL history. The Saints conduct clearly warranted serious sanctions, and perhaps even a criminal investigation. This is supported by the fact “…the Saints lied in what the league called a deliberate effort to conceal the program’s existence from league investigators and had a clear determination to maintain the program.” I suggest the sanctions meted out should have included taking away the 2009 Super Bowl win from the Saints as well.

In my law practice, I advise employers to carefully consider the actions of employees before administering any discipline, taking great effort to make sure the “punishment fits the crime.” Discipline should be designed to correct behavior and insure it does not happen again. I am waiting to see the discipline issued to individual Saints players who participated in the bounty system.  

In the case of the Saints, stripping them of their 2009 Super Bowl win, in addition to the other sanctions issued against the team, and coaching staff will go far to insure the bounty system will not ever happen again. In the end the Vikings were still robbed, at least the robbers are paying for their misdeeds.
 

My long-time friend and recruitment advertising guru, Chris Bacon, sent me an interesting article she ran across and asked my legal opinion, “Would you fire someone for working through lunch?” The online article she forwarded to me outlined an absurd set of facts.

Sharon Smiley, a receptionist/office assistant with a Chicago real estate company opted to not eat lunch, and instead she worked at her desk, answering phones and working on a spread sheet for her employer. When her manager observed her working during her lunch break, she was told to go and speak with the HR manager, who promptly terminated her employment for violation of the lunch policy and insubordination. A two-year court battle over unemployment benefits followed. Last month, a Cook County judge ruled Smiley’s conduct did not rise to the level of misconduct, and awarded her unemployment benefits.

I understand the concept of workplace policies and the concern employers have about employees working “off the clock,” creating overtime problems under the FLSA. But really…… terminating an employee for working through lunch! What about common sense, communication, and simply correcting an employee’s misstep?

While Sharon Smiley represented herself throughout the two year legal battle over unemployment benefits, you can bet her employer did not. They no doubt spent a handsome price on legal fees arguing that a ten year employee who opted to work through lunch had committed gross misconduct, warranting the denial of unemployment benefits.

The short answer to my friend Chris is “NO!” I would not advise any client of mine to terminate an employee who works through their half- hour lunch break. I would advise the employer to speak to Ms. Smiley and explain why working through lunch is not acceptable. Since the “work” had already been performed, the employer should also check to see if Smiley was entitled to overtime for the one instance. The matter should be documented and Ms. Smiley provided a copy of the written documentation. The documentation should include a warning to Ms. Smiley that she could be disciplined if she works through lunch again in the future. In all reality though, Ms. Smiley seems bright enough that simply advising her she can’t work through lunch and why might have been enough to deter the behavior from happening again. Oh, and let’s not forget, a shake-up in HR might be warranted too. 
 

What should I do about a problem employee? Train, transfer, or terminate? Many of our clients struggle with assessing employee misconduct, and knowing how to make good employee discipline decisions. Making the wrong decision can be costly, embarrassing, and damaging to workplace morale. Too harsh of discipline can be just as bad as ignoring misconduct. The goal for all employers should be to reach a reasoned decision, and mete out just the right discipline based on the facts, the record of the employee, and the practices of the workplace.

I am speaking at the Association of Minnesota Counties Annual Conference on December 5, 2011, on employee discipline. The subject of my presentation is “How to Lose a Discipline Grievance.” Most of our public sector clients deal with unionized employees who have grievance arbitration rights to appeal discipline decisions. Arbitration challenges mean an employer’s discipline decision will be carefully scrutinized, and will be subject to testimony and evidence before a neutral arbitrator.

The materials I prepared for the presentation include a checklist for employers. It is designed to be used when facing an employee discipline decision. It covers a wide range of things to consider from the quality of the investigation, to the employee’s personnel record, and the history and practice of the individual workplace. The checklist is based on a review of approximately 40 termination arbitration decisions posted by the Minnesota Bureau of Mediation Services in 2011. Approximately 20 of the termination decisions were sustained, and the other 20 were overturned and a lesser form of discipline was issued by the arbitrator. I paid special attention to the 20 terminations overturned by an arbitrator. The raw numbers indicate about half of the termination decisions were overturned in 2011. A 50-50 success rate is unacceptable, costly, and leaves much room for improvement.

Making an employee disciplinary decision can be difficult, but following good employee management practices can remove some of the guess work. The goal for every employer should be to make defensible decisions which will withstand outside scrutiny. Start with this checklist and seek legal advice when there are questions or uncertainty.