Performance v. Misconduct



Disciplinary action is used to address employee misconduct, rule violations, and other improper or inappropriate behavior.  In the State system we make a distinction between how we handle employee misconduct versus poor performance.


n       Poor Performance or incompetence can be described as a situation where the employee would if the employee could.  Performance issues are addressed using the State’s Performance Appraisal System.


n       Misconduct and other improper behavior can be thought of as: the employee can but won’t.  Examples of misconduct would be failure to abide by policies or directives; insubordination; inappropriate or disrespectful language or behavior; tardiness; unauthorized absences, and so on.  Misconduct is addressed through the disciplinary process.  Discipline is meant to be corrective, remedial; not punitive.  The intent is to help the employee to rehabilitate--to correct the inappropriate behavior, to follow the rules, or to conduct him or herself appropriately.



Progressive Discipline:


One of the concepts that you may be familiar with is progressive discipline.


Progressive discipline is increasing the severity of penalties if the same offense is repeated. 


--Try to use the lowest level of discipline that will result in the desired change in behavior.  Under the progressive discipline concept, the level of discipline is increased if the employee repeats the misconduct.


--If the employee commits a different type of violation progressive discipline would not apply.


--If an offense or violation is very serious, progressive discipline may be waived and the employee can be suspended or discharged as the first stage of discipline. 


Under normal circumstances, the progressive discipline steps are:


        Oral Reprimand

        Written Reprimand

        Suspension without pay; usually beginning with a short suspension and followed by longer periods of suspension



But before we go further, let’s talk a little about what I would call “pre-discipline.”  When you observe that an employee is doing something wrong, if you intervene quickly, you may get the desired behavior without needing to go the disciplinary route.  Plus, if the problem is allowed to linger, it’s likely to grow or spread.  It’s better if the problems are “nipped in the bud” at an early stage, through more informal communication of work rules and expectations.


If you use an informal approach and intervene early, you can often find out why the problem and then suggest ways for the employee to correct the situation.   It’s a way of making the employee aware of the boundaries and what the work expectations are before the situation gets out of hand.


Before taking disciplinary action, you also want to insure that you have laid the proper groundwork.  You need to do is insure that the employee is aware of the requirement or expectation.  Here are a couple situations where proper notice would be important:


        When there is a new rule or when existing work rules change.  It would be very difficult to uphold a disciplinary action for a violation of a new work rule if the change in expectation or procedure had not been clearly communicated to the employees before the violation occurred.


--   When rules have been overlooked or inconsistently enforced.  Before taking disciplinary action, you should give employees notice that henceforth, the rules will be enforced and that failure to abide by the rules will result in disciplinary action.  An example would be when employees have been allowed to come to work late.  It would not be fair to all of a sudden discipline an employee for tardiness without first giving notice to all employees that in the future they may be discipline if they come to work late.  Situations like this are quite common, since supervisors may be reluctant to address what seems to be a minor infraction. 


Usually work rules and other requirements are in writing.  However, it is not always necessary that there be a written rule or that employees receive "official notice” in order for disciplinary action to be taken.  Conduct that is commonly recognized as improper behavior in the work setting such as stealing State property, assaulting a co-worker, or drinking alcohol while on duty, would not have to be specifically prohibited in writing in order for you to take disciplinary action.


So, assuming that the informal approach did not work and that you have laid the groundwork, what are the types of disciplinary action that you can take?


Types of Disciplinary Actions


If you are a first-line supervisor, the forms of discipline that you are most likely to use are oral and written reprimands.


An oral reprimand is the first formal step in applying progressive discipline.  Its primary intent is to advise the employee that the specified conduct or behavior is unacceptable and that there must be improvement; otherwise more severe disciplinary action may result.  You may not think that an oral or verbal reprimand would be documented in writing, but often it is.  For employees in some of the bargaining units, a written record of the oral reprimand needs to be given to the employee and a copy placed in the employee’s official personnel file.  For employees in other bargaining units, some supervisors do a written confirmation of the oral reprimand; departmental practices vary as to whether this written confirmation would be filed in the official personnel file.  In any case, it is very important that the employee understand that he or she has been issued an oral reprimand, so I would suggest that you specifically use that term when you speak to your employee, especially if you are not doing any type of written documentation.


A Written Reprimand is used either when an oral reprimand fails to produce improved behavior or when the misconduct was of a more serious nature where an oral reprimand would be too lenient.  Its primary intent is to put the employee on formal notice that there must be improvement in his or her behavior and that repeated misconduct may result in more severe disciplinary action.


The next level of discipline is a suspension without pay, which is a severe form of discipline involving loss of pay and seniority.  If you are a first line supervisor, you probably do not have the authority to issue a suspension, but you may be expected to do all the ground work and make a recommendation for suspension action to a higher level in your chain of command.  Procedures in your department will vary, but in any case timely action is very important.  The content of a letter of suspension would be similar to what you include in a written reprimand, except that it would also include the actual dates the employee is being suspended. 


Discharge is sometimes known as the “capital punishment” in the employment setting.  In the State we previously used the term dismissal, but now you are more likely to hear the word discharge.  This action is taken when the employee continues to repeat the misconduct for which he or she was previously disciplined or possibly when there is an extremely serious first offense.  Under normal circumstances, discharge is justified when the employee’s conduct record has been poor and evidence shows that other forms of progressive discipline – oral reprimand, written reprimand, and suspension, as well as additional efforts by management to help the employee, such as referrals to services, leaves of absence, or other interventions have failed.  Again, procedures and the extent to which you will be involved will depend on how your department operates.  Generally the appointing authority--the department head--is the only person who has the authority to discharge an employee.


Even though you follow the principle of progressive discipline, most times that you take disciplinary action, you can expect that the union will file a grievance.  Each contract has a section on discipline that provides that regular employees can be discipline for “proper cause” or “just and proper cause.”  The union is usually alleging that you violated that provision of the contract because the disciplinary action you took did not meet the just cause standard. 


When we review discipline grievances, some of the most common pitfalls we see include:


--No investigation or an incomplete investigation prior to taking disciplinary action;


--Employee was not afforded due process prior to taking disciplinary action;


 --Untimely investigations and/or disciplinary actions;


 -- Impartial investigation; or


 --Decision making was based on feelings or opinions rather than facts.




Elements of Due Process


You’ve probably heard about the idea of due process as it applies in the criminal setting.  We also have elements of due process when it comes to labor relations and taking disciplinary action against an employee.  Some of the basic elements of due process are notification, opportunity to respond, and union representation rights.  For you as a supervisor, these employee rights can make the process more cumbersome; but if the shoe is on the other foot, and you are the one under investigation, maybe you can better appreciate why these protections are there for the employee.


Perhaps the easiest concept to understand is that the employee is entitled to have an opportunity to present his or her side of the story.  For a simple incident, this may only amount to finding out from the employee his version of the events or getting an explanation for the behavior or misconduct.  In more complicated situations, and particularly where suspension or discharge is under consideration, this may also include the employee being presented with the evidence the employer has so that the employee can respond to the allegations and findings by the employer.  Some of you may have heard of Loudermill rights, which apply when an employee is subject to discharge.  When we are contemplating discharging an employee, we provide the employee a notice of the impending discharge; the information and evidence that the employer is basing the discharge on; and we schedule a pre-termination hearing to provide an opportunity for the employee to respond to the proposed termination.


Another aspect of due process involves union representation rights, sometimes known as Weingarten rights.  The employee is entitled to have the union present during an investigatory interview if he or she reasonably believes that discipline may result.  If you are conducting the investigatory interview, you are not required to arrange for the union representation, or even to inform the employee the he is entitled to representation.  However, if the employee asks for representation at any time during the interview, you much stop the interview and re-schedule it for a time when the employee can be represented.  To facilitate matters, some departments routinely inform the employee of his or her union representation rights when they schedule the investigatory meeting so that the union attendance can be arranged in advance.  At a minimum, it is important for you to make it clear to the employee the purpose of the meeting, so that the employee is not blind-sided.


Our State contracts include sections on employee’s “Bill of Rights.”  These provisions basically provide that employees shall be informed of complaints made against them and be provided an opportunity to respond to the complaint--basically the elements of due process that we have covered here.  It would be a good idea for you to go back and review these sections of the contracts that apply to your subordinates.



You may have heard of the Seven Tests of Just Cause.  Sometimes you will hear about the just cause checklist, which is the same thing.  These are standards by which a disciplinary action can be judged.  If a grievance is filed and the case goes all the way up to arbitration, many attorneys and arbitrators will use these as criteria to determine whether the discipline was for just and proper cause.  From the employer perspective, we may argue that in a particular case, it is not absolutely necessary to meet all seven tests for the disciplinary action to be upheld.  Still, using these tests as a checklist when you are contemplating disciplinary action would be a good idea.


I like to condense the 7 Tests into four major elements:


First, the employee must understand what is expected of him or her and be informed of the consequences of inappropriate behavior or rule violations.


Secondly, the supervisor needs to be consistent in applying or enforcing the rules and other expectations.  Problems cannot just be addressed on an ad hoc basis because if you are inconsistent, it can be argued that your actions are arbitrary or capricious or even discriminatory, and your action will no doubt be overturned.


Next, the severity of the disciplinary action needs to be appropriate for the offense--that’s the concept of progressive discipline that we discussed earlier.


Finally, the employee needs to know the charges and be given an opportunity to respond.  You need to get the employee’s side of the story.




When we talk about an investigation, we are simply talking about getting the facts and drawing conclusions based on these facts.  The purpose of the investigation is to gather facts to make a credible determination as to what happened in a given situation.  Having accurate facts should lead to making sound conclusions.  When you are conducting an investigation, you need to be objective and fair, and you need to know how to ask questions; extract information; and sort relevant information from irrelevant details.


Another way to think about it is that you want to make sure you conduct an objective and thorough investigation in order to minimize the risk that an employee is disciplined for something he or she did not do.  Furthermore, things may not necessarily be as they appeared at first glance.  By conducting a complete and careful investigation, you can avoid making an incorrect, devastating or costly decision.


Sometimes the fact finding process will be fairly simple.  Perhaps you observed the employee coming in late to work and ask to talk to the employee about it.  The employee acknowledges she was late, and also provides an explanation that is easily verifiable.  At that point, you probably have all you need to decide what further action to take.  On the other hand there you may face a situation, where there are numerous allegations and a number of different people involved.  When you have that type of situation, I would recommend that you prepare an investigation plan.  Elements of an investigation plan include:





The investigation plan can serve as a road map for you as you conduct the investigation.  A question that sometimes comes up is what if the accused employee refuses to answer any questions.  Sometimes the union may even advise the employee not to say anything.  If this occurs, you can explain to the employee that you will proceed with your fact finding and that your conclusions will be based on the relevant information that you obtain.  Depending on the seriousness of the incident and type of disciplinary action under consideration, you may need to prepare a written report on your investigation and make a recommendation for disciplinary action.  Contents of an investigation report should include:


--Background Information

--Allegations or charges

--Summary of the evidence found as a result of the investigation




Upon completion of the investigation, you may also be asked to make a recommendation on what level of disciplinary action should be taken:


--Keep in mind the concept of progressive discipline, and starting at the lowest level of discipline if this is the first incident.  In fact if the appropriate level of discipline is an oral or written reprimand, you may be authorized to make the decision at your level.


--If the conduct is of a more serious nature, more severe discipline may be warranted even if this is the first incident for this employee


--Generally departments do not have a written discipline schedule.  However, you should consult with your supervisor or managers to get an idea of how similar incidents have been handled within your organization.  Keep in mind that the same misconduct may warrant more severe discipline in different organizations e.g. sleeping on duty for a corrections officer versus other employees who do not have security responsibilities.


--It is appropriate to mitigate or reduce the discipline in recognition of the employee’s record, including length of service or clean disciplinary record.  You may also mitigate the discipline if you find that there were unique circumstances, for example insufficient training of a new employee, that warrant lesser discipline than would normally be taken for a particular incident.


--The level of discipline should be based on the charges for which you have found the employee guilty. If you are uncertain about the most serious charge, but can be reasonably certain that a lesser misconduct was committed by the employee, then you should take the level of discipline appropriate for the lesser charge.  If your investigation is not conclusive on any of the charges, then you wouldn’t take any disciplinary action.


--Another common pitfall in determining the level of discipline, is trying to take into account previous incidents or issues for which you did not take disciplinary action.  This may be the third time the employee acted inappropriately, but if you did not address the first two incidents, you have to treat this third incident as if it were the first time and begin at the lower level of discipline.


--Check with your departmental personnel office and supervisor regarding the level of discipline you are authorized to take, and which actions need to be approved at a higher level in the chain of command.  Most supervisors are authorized to administer oral and written reprimands.


--Ensure that all investigation materials and information pertaining to disciplinary matters are kept confidential.