At the same time, progressive discipline does not have to go on forever. (But do respond if the employee raises personal issues in response to your corrective counseling.). The goal is not to punish the employee, but to alert the employee to the need to correct specific behavior. To qualify as progressive discipline which can be utilized to support the penalty in an adverse action, a counseling memo must include an advisory referred to as a Bazemore warning. MOUs include provisions that govern the maintenance of records. If you tell an employee you want to meet to discuss their performance, he may ask to bring a union representative to the meeting. Identify the specific things you want the employee to do in the future to eliminate that performance gap, and what you can do to support the change with training, mentoring, or other resources. 2d 294 (W. Va. 2001) (college "should not have fired [tenured professor] before resorting to other progressive disciplinary measures" under West Virginia constitution). It consists of three phases: 1. Enter into the address field the URL of the website you want to create a shortcut to. Are you an “open door” boss, all the time or during certain hours? The Bazemore | Bazemore - Text Only (RTF) warning is a critical part of the counseling memo. The OPF is a comprehensive record of the employee’s transactional history as a state employee. Check with your HR office and review the employee’s. Either the employee’s performance improves or, with buy-in from your supervisor and the help of your HR office, further action will be taken. For immediate access, join online or by phone at (800) 649-4921. Nobody likes to be criticized so do not be surprised if the employee to be defensive. After the department's representative asks you questions about the employee's performance or misconduct (direct examination), you will most likely be asked questions by the lawyer/representative for the employee as well (cross examination). The Proposed Decision will give dates and times of the hearing, and in a “Statement of Facts” set out the facts which the ALJ has found to be more likely true than not. For example, is the unit missing deadlines? Again, HR will take the lead on these actions. For example, drunk driving may be job related for a Peace Officer but not for an Office Technician. If the employee gave you samples of his or her work, verify with the employee's reference that the employee prepared those products on his or her own. Open the website or web page you want to pin to your home screen. Progressive reformers made the first comprehensive effort within the American context to address the problems that arose with the emergence of a modern urban and industrial society. While employers may choose to implement a progressive discipline policy that starts discipline with a verbal warning and progresses to a second or third written warning prior to termination. So always review the MOU and discuss it with your LR office to make sure your documentation meets the rules. Disciplinary measures range from mild to severe, depending on the nature and frequency of the problem. During the hearing, the employer (your department) will have the “burden of proof.”  This means the department will have to prove by a preponderance (more than 50%) of the evidence that the employee’s conduct meets the definition of one of the 24 legal reasons for discipline. Why is documentation important? Senate Bill No. As a supervisor, when you inquire into an employee’s health or personal life, even with the best of intentions, you can find yourself accused of inappropriate conduct. We conducted this review under the authority of California Penal Code section 6126(a) (1), which assigns the Office of the Inspector General responsibility for oversight of CDCR. The amount of time that a counseling memo may be retained in an OPF will vary depending on factors including the applicable MOU and the department’s procedures. Be specific, stick to the facts, and include: If you tell an employee you want to meet to discuss their performance, he may ask to bring a union representative to the meeting. This is a system in which one or more in a series of actions is taken by management to prevent or to respond to an employee's failure to meet work standards. What kind of programs/processes did you use on your last job? A progressive discipline policy provides for distinct discipline steps of increasing severity of which both the employer and employee are aware and can anticipate. Search California Codes . First, time is limited so don’t put off dealing with poor performance. Throughout this guide, we advise you not to ask the employee if they are having a personal or medical problem, but instead to focus on the employee's actual performance. Penalty is the change in the employee’s status that the employer has made with the adverse action. If you have provided this type of memorandum to the employees in your unit, make sure your new employee receives a copy as well. Enough time. Privacy - if you don’t have a private office, find a private room to use for the meeting. 1. “Adverse Action” is the name of the legal process state departments follow in order to reprimand, suspend, demote, or terminate a permanent employee. Medical actions are very complex and often involve overarching issues related to accommodating employees with disabilities. Progressive discipline is the process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. Prepare an outline of what you want to say. Your supervisor’s file is NOT confidential - the employee or his/her representative can see it upon request. Tap "Add to Home Screen." Is the employee classified as a peace officer or a firefighter, EMT or paramedic? Don’t speculate about the employee’s health or personal life. about any special procedures or rights the employee has when being counseled on a performance problem. It is maintained by the HR office and follows the employee if the employee transfers to another department. Government Code section 19572 establishes 24 separate and distinct grounds for taking adverse action, and each one has its own legal definition that the appointing authority has the duty to prove applies to the facts of a particular case. Revision Date: NA. Here are some points generally covered with a new hire: Explain the organization’s mission and culture, and how your unit and the employee’s job fit into the organization’s goals. Updated August 02, 2020 Progressive discipline is a process for dealing with job-related behavior that does not meet expected and communicated performance standards. “You have been late three of five days this week” is precise and focused. Discuss the issue with your supervisor, and LR and HR staff to explain your corrective work improvement plan so they can determine whether POBR or FPBR will be triggered and ensure your plan complies with these statutes whenever you are planning to conduct a corrective counseling session with a peace officer or a firefighter. It is the philosophy of California State University, Bakersfield to follow a program of progressive discipline when an employee fails to meet the required standards of performance or displays inappropriate conduct. 31012) JOHN J. RIZO ) BOARD DECISION) (Precedential) From dismissal from the position ) of Equipment Operator with the ) NO. A “Statement of Causes” which lists the grounds for the adverse action, referring to subsections of Government Code Section 19572. These administrative hearings follow procedures very similar to those used in a court of law:  parties are often represented by lawyers, witnesses provide testimony under oath, and the ALJ adheres to a set of formal rules for receiving evidence and reaching a decision. Departments rely on supervisors to assist every employee to be efficient, productive, and satisfied. The supervisor’s file is also your record that you have followed the rules and performed your duties as a supervisor properly. (Some departments require the employee to sign). The testing is mandated according to the United States District Court; Northern District of California Case No. The Medical Board of California is the State agency that licenses medical doctors, investigates complaints, disciplines those who violate the law, conducts physician evaluations, and facilitates rehabilitation where appropriate. Establishing discipline procedures is critical to the effective enforcement of work rules. Progressive discipline requires you to let employees know what you expect, to be fair, consistent, and objective in imposing discipline, to include employees in the process of improvement, and to document your actions and decisions properly. If the atmosphere is too charged, set a time to get back together. The following are examples of discussions with an employee about performance problems, offered to get you thinking about how you might want to conduct the conversation. Addressing performance problems always requires a department-wide perspective. Discuss any concerns with the employee as the issues come up and document your discussions. If you allow an MSA to go into effect for an employee against whom you later take adverse action during the same performance period, the employee will counter the adverse action by pointing out that his or her performance was satisfactory enough to merit an MSA . Any changes you are making with the goal of improving the employee’s performance, such as a shift change or different assignment. Ask about the employee’s needs and work style as well. In a skelly hearing, the employee is afforded the opportunity to explain why the action is mistaken. For example, offer answers to the following questions for your new employee so she or he understands your basic expectations: When do you expect him or her to be at work? Review the duty statement for the job. If the employee’s work history is mostly in the private sector, ask your HR office to help you devise a consent form that will cover private employment as well. Preventive Action For example, it is not appropriate to say, “I know things are tough at home but . Tell the employee what he or she needs to do to meet the standard and explain the support you will provide. Make an appointment to review the OPF and take a member of your HR office to assist you in interpreting the transaction coding in the employee’s history. Then talk about what you need the employee to do in the future. The supervisor’s file (referred to by some as a “drop file”) is the record that you keep on the employee’s work and it stays with you even when the employee moves on to another job. Ask if the person would rehire the employee if given the opportunity. It is a defined process designed to help you and the employee overcome any issue. If you supervise any of these “public safety officers,” you probably already know about POBR – the “Public Safety Officers Procedural Bill of Rights Act” beginning at Government Code 3300. R. N at p. 6. If an employee’s failures are causing a problem for coworkers, say so. If the employee has violated policies, copies of the policies may be included as well. California State University. The form used for evaluations, the factors considered, and other rules may vary as well. ALJs are real judges just like the ones in the courts, and they are governed by the same code of conduct, meaning they must be impartial, thorough, studious, and professional. Stay calm. The Add to Home dialog box will appear, with the icon that will be used for this website on the left side of the dialog box. The Letter of Reprimand is a formal disciplinary action and is subject to appeal by the employee. The right type depends on the employee violation. The lawyers will raise objections from time to time and the ALJ will rule on the objections. Sometimes, you can just celebrate for no particular reason other than to build camaraderie. Causes for Adverse Action, or Grounds for Adverse Action refers to the 24 reasons to take action found in Government Code Section 19572. These step could include verbal warnings, written warnings, probation, suspension, and terminations. The time limits on probationary periods and the statute of limitations on adverse actions, among other requirements, require you to stay on top of problems and address them directly, simply, and quickly. Expand sections by using the arrow icons. This warning consists of a scripted advisory that notifies the employee of the possibility of formal adverse action for the incidents covered in the counseling memo as well as new conduct if similar poor performance occurs in the future. Have others had to work overtime to make up for the employee’s poor performance? The State Civil Service Act requires notice of any adverse action against any state employee for any cause for discipline based on any civil service law to be served within 3 years after the cause for discipline, upon which the notice is based, first arose. With any workplace policy, there are pros and cons, and progressive discipline is no exception. We conclude plaintiff was not barred from litigating her state claims in superior court. The usual steps are first oral and then written warnings, followed, if need be, by suspension without pay and finally by termination. The ALJ will generally listen to both sides, point out the weaknesses in their respective cases, and encourage settlement. Provide plenty of feedback, training and document the feedback. We conducted this review under the authority of California Penal Code section 6126(a) (1), which assigns the Office of the Inspector General responsibility 3. The principles of progressive discipline require that an employer, seeking to discipline an employee for poor work performance, follow a sequence of warnings or lesser disciplinary actions before imposing the ultimate penalty of dismissal. Stick with the facts. 01-cv-01351-JST. The success of progressive discipline can determine if an employee may be helped before proceeding to the termination process. Document, document, document. What Happens If You Disagree With the Results of an Inspection? The employer must prove its case by a preponderance of the evidence, meaning the ALJ must find it more likely than not that the department’s proof of the facts of the case is correct. These memos outline basic work rules regarding work schedules, calling in and requesting leave time, reporting whereabouts and other department-wide or unit-wide rules. You should document the discussion and any conclusions you reached. Review the performance expectations you have established for the job. Performance problems require “progressive discipline.”   This means that the employee is given notice of the deficiency, training and the opportunity to improve the performance problem. A formal adverse action is the final phase of progressive discipline in which the actions taken will have a negative, often financial, impact on the employee’s job status. It’s fair: not just fair to the employee with the problem; it is fair to the whole unit and department. Generally it will work, and you will never have to reach the Formal Adverse Action Phase. Facts that support the penalty that the department is imposing. This is FindLaw's hosted version of California Code, Labor Code. . It’s a practice — found also in some collective bargaining agreements — that typically provides a multi-step disciplinary process for many employment policy violations: a verbal warning, a written warning, a suspension, and finally termination. The department will also offer proof that the penalty chosen is appropriate to the problem. 1. The SPB may reduce the penalty if the record does not reflect the department took progressive discipline that afforded the employee the opportunity to correct the poor performance. Tell the employee you hear them, but you need to get back to them and schedule a follow-up meeting. Verbal warnings (usually 2-3 at the most). So again, always consult with your HR staff and/or the LR office to make sure you understand any MOU guidelines that apply to that employee’s rights. And if not, ask the employee for additional references. Cancel. . Some departments expect you to evaluate the employee on the employee’s anniversary date. The Notice will include: What penalty is being imposed and when it is effective. Who Isn't Covered by Workers' Compensation? Do not ask the employee or guess at what is motivating the poor performance. Do not try to determine how best to accommodate an employee with a disability without obtaining assistance from appropriate staff who are trained in this area. 93-05 Department of Transportation at ) Marysville ) January 12, 1995 Questions regarding progressive discipline should be addressed to the Office of Employee Relations. Whatever the type of proceeding, the supervisor is often called as a witness, and your supervisor’s file will provide critical documentation of why the action was necessary and appropriate. Emailing yourself | Emailing yourself - Text Only (RTF)has the advantage of noting the time and date of your feedback. A department taking an adverse action will need to be able to describe what happened; who the witnesses were; when it happened; where it happened; and whether it was an isolated event or part of a continuing pattern. Again, consult with your HR or LR staff. There may be “discovery” prior to the hearing itself when the employee can ask the department to produce records or provide the opportunity to talk to possible witnesses. Is an alternative work schedule possible now or in the future? Talk to your HR or LR staff to make sure you understand the employee's rights before the meeting. "Progressive Discipline" is a policy or practice that, over the years, has fallen out of favor with some employers. Implementing the Progressive Discipline Policy Background . As a result, unlike adverse actions, in appeals from rejection on probation, the burden of proof is on the employee. Often the supervisor fills that role because the supervisor is the best source of knowledge about the employee and what happened, and therefore best able to help when the department's lawyer has a question about the testimony or other evidence. Be ready to tell the employee the solution to the problem. 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