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Legal Issues Effecting Employee Disciplinary Programs

Legal Issues Effecting Employee Disciplinary Programs. Putting Disciplinary Policy into Practice. Goals of the Process. Legal Fair and Perceived as Fair Supports the Mission, Vision, Strategic Plan, Goals, Values, and Code of Ethics of the Organization Consistent Timely

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Legal Issues Effecting Employee Disciplinary Programs

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  1. Legal Issues Effecting Employee Disciplinary Programs Putting Disciplinary Policy into Practice

  2. Goals of the Process • Legal • Fair and Perceived as Fair • Supports the Mission, Vision, Strategic Plan, Goals, Values, and Code of Ethics of the Organization • Consistent • Timely • Sends the intended message • Provides for Management Discretion • Teaches

  3. Virginia Department of Corrections

  4. Virginia Department of Corrections • Largest State Agency12,000 Employees31,000+ Inmates in 40 Facilities51,000+ Offenders in the Community • Geographically Diverse3 Regions • HR is a Corporate Model • Decision making is a combination of centralized and decentralized

  5. Challenges • Disciplinary Decisions that will be upheld • A policy that complements and supplements other policies such as:Workplace HarassmentSexual HarassmentEmployee Drug TestingCode of EthicsFraternization • A policy that supports the professionalism of the organization

  6. Challenges • Is known and understood by managers, supervisors, and employees • Is Perceived as being Fair

  7. Key Elements • Is a System of Progressive Discipline • Corrective Action matches the Conduct • Provides Due Process • Provides for your Agency’s Uniqueness • Includes other conduct which undermines the employee’s ability to do the job or the Agency’s ability to perform its mission • Provides for mitigating circumstances • Provides a post disciplinary review or appeal

  8. Key Elements • Covers both on the job and off the job conduct • Includes the status of the employee during internal and external investigations • Includes the status of the employee during the disciplinary process • Includes how to handle non-disciplinary discharges • Is Coordinated with other policies

  9. Progressive Discipline • 3 Levels of OffensesGroup I, Group II, and Group III • Progressive Corrective ActionFor initial and subsequent offenses • An “active life” for disciplinary actions • Counseling and/or Substandard Performance • Group I Offenses – Written Notice • Group II Offenses – Suspension • Group III Offenses - Termination

  10. Group I Offenses (examples) • Inadequate or unsatisfactory job performance • Unsatisfactory Attendance or Excessive Tardiness • Disruptive Behavior

  11. Group II Offenses (examples) • Failure to follow Supervisor’s Instructions, perform assigned work, or comply with policy • Refusal to Work Overtime • Unauthorized or Misuse of State Property or Records • Violating Safety Rules where there is not a threat to life • Leaving the Work site during working hours without permission

  12. Group III Offenses (examples) • Falsifying Records • Absence in excess of 3 days without proper authorization or a satisfactory reason* • Acts of physical violence or fighting • Sleeping during working hours • Violating Safety Rules where there is a threat of physical harm

  13. Offenses that Cross Group Levels Violation of the Commonwealth’s Policies on: • Alcohol and Other Drugs • Workplace Harassment • Equal Employment Opportunity

  14. DOC Unique Standards • Refusal to obey instructions that could result in a weakening of security • Leaving a security post without permission during working hours • Physical abuse or other abuse, either verbal or mental which constitutes recognized maltreatment of offenders

  15. DOC Unique Standards • Sexual Misconduct with Offenders or Staff • Violation of any criminal drug law, including sentencing under the first time offender’s law, based on conduct either in or outside the workplace • Fraternization or non-professional relationships with offenders who are within 180 days of the date following their discharge from custody or termination from supervision

  16. Due Process • How will the employee be informed of the charges – Oral or Written Notice of the Offense • What must the charges contain – An explanation of the agency’s evidence in support of the charge • A reasonable opportunity to respond

  17. Due Process • Establish a time period between the giving of the charges and when the employee will be able to respond to the charges • Establish the options for the employee’s status during this period of time • The decision maker must be open (not make final judgment) until after hearing the employee

  18. Due Process • What will be the nature of the meeting?Who will be present?What roles will they have? • Who has the authority to make what levels of decisions, e.g. suspension, termination? • When will the final decision be made?

  19. The Decision • Role of the Supervisor • The final charge must match the misconduct and the results of the misconduct • The “Corrective Action” (discipline) must match the misconduct and the results of the misconduct • Must be reviewed for consistency • Must be reviewed for fairness

  20. The Decision • Take the “personality” out of the decision • Consider prior performance and disciplinary actions • Consider the effect of the conduct on the agency and its employees • Consider mitigating circumstances (both good and bad) and make them part of the record

  21. The Decision • When, where, and how it will be delivered to the employee • Include any post review process that is available • Will you allow the employee to resign in lieu of termination? If so, what does it mean, how do you handle it

  22. Other Related Disciplinary Issues • If suspended, issues to considerFLSA – non-exempt or exempt?ID cardAccess to premisesAccess to other employeesComputer accessEffect on any benefits, any changes in amounts the employee may have to pay or what may need to be paid directly rather than through payroll deduction

  23. Other Related Disciplinary Issues • If terminated, issues to considerIs there any potential for violenceHow will the employee be allowed to leaveHow will the employee retrieve his propertyHow will the Department retrieve its propertyID cardAccess to premisesComputer accessAccess to other employeesEffect on any benefits, COBRA, retirement, leave payouts, etc

  24. Post Disciplinary Review • A process that is independent from the original decision makers • Ensures an objective review • Adds a fairness dimension to the process from the employee’s perspective

  25. Other Misconduct • The policy should clearly state that your Standards are illustrative and not all inclusive • The policy should clearly state that any conduct that undermines the employee’s or agency’s effectiveness may result in disciplinary action

  26. Conduct Off the Job • The policy should include misconduct off the job • An employee’s conduct off the job can undermine his effectiveness to perform his duties on the job • An employee’s conduct off the job can undermine the agency’s effectiveness in performing its Mission

  27. Examples of Misconduct Off the Job • Criminal Convictions including DUI • Domestic Violence • Inappropriate conduct involving another employee off the job

  28. Coordination with Other Policies • Employee Drug Testing – zero tolerance • Use of state computers to visit pornographic websites – zero tolerance • Sexual or workplace harassment – level of misconduct is matched to level of charge and disciplinary action (All 3 levels of group offenses contains the prohibition against these forms of harassment)

  29. Employee Status During Investigations • The policy should provide for alternatives during an agency disciplinary investigation:Continue workingTemporary transferSuspension (with or without pay) • Length of time any suspension without paycan last • Can or should the employee continue receiving pay while on suspension

  30. Employee Status During Investigations • The policy should provide for alternatives during criminal investigation off the job:Continue workingTemporary transferSuspension (with or without pay) • Length of time any suspension without paycan last • Can or should the employee continue receiving pay while on suspension

  31. Non Disciplinary Separations • Somewhere in this or another policy you should include how you will handle separations that are not disciplinary, but are because the employee can no longer perform the essential functions of the position • Examples: A domestic violence conviction that precludes carrying a firearmThe lost of a drivers license for a position that requires driving*

  32. In Conclusion, your Disciplinary Policy should include: • A System of Progressive Discipline differentiating between the less serious and more serious offenses • Corrective Action that matches the Misconduct • Due Process • Specifically address your agency’s uniqueness • Flexibility to include offenses not specifically stated and conduct off the job • Mitigating circumstances • Internal consultation to insure consistency, fairness and proper application of policy • A post disciplinary review or appeal

  33. Contact Information H. Paul Broughton Deputy Director for Human Resources Virginia Department of Corrections P. O. Box 26963 Richmond, Virginia 23261(804) 674-3449 paul.broughton@vadoc.virginia.gov

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