Transcript Proactive Employee Performance

Addressing Employee Performance
Issues without Running Afoul of the Law
Maureen Moeglin
Associate Vice President of Human Resources
and
James Thibodeau
Director of Labor Relations and General Counsel
What you will walk away with….
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A better understanding of how to use progressive
discipline when undesirable conduct occurs.
A basic understanding of the Family Medical Leave Act
and the Americans with Disabilities Act, as Amended, and
the Fair Labor Standards Act and why you should contact
Human Resources or the College’s Legal Counsel before
taking action.
An appreciation for the importance of detailed, accurate
documentation to establish a record of your efforts to
help an employee dealing with performance issues and
to support potential future disciplinary action.
SUPERVISOR’S ROLE
Coach
Counselor
COACH
A coach trains the employee, orients him/her to the
realities of the workplace and helps the employee remove
barriers to optimum work performance. Coaching skills are
used most often during the orientation period but are also
helpful during performance reviews.
COUNSELOR
At times, the employee turns to his/her supervisor for
help in defining and working through work-related or
personal problems. While it is okay to show empathy in
these situations and offer some suggestions, do not
confuse coaching with counseling and never take on
the role of a professional counselor. Instead, encourage
the employee to take advantage of the Employee
Assistance Program.
An Effective Coach…
 clearly states performance expectations
 explains not only how but also why
 is consistent and fair
 praises, communicates, and listens
 is cognizant of own personal bias
 seeks feedback and ideas
 is friendly but avoids personal friendships
Maximize Employee Performance
1.
2.
3.
4.
5.
6.
Build their confidence
Give good performance feedback
Provide improvement resources
Teach them to set goals
Match them with top performers
Catch them doing good things
PERFORMANCE APPRAISAL
Performance appraisal is the process of
evaluating how well employees perform
their jobs when compared to a set of
standards and then communicating that
information to those employees.
Source: Human Resource Management by
Robert L. Mathis & John H. Jackson, 9th
Edition, 2000
PERFORMANCE MANAGEMENT
A performance management (system) is a
set of processes used to identify,
encourage, measure, evaluate, improve,
and reward employee performance
Source: Human Resource Management by
Robert L. Mathis & John H. Jackson, 9th
Edition, 2000
ORGANIZATIONAL STRATEGY

PERFORMANCE MANAGEMENT PRACTICES
•Identify expected performance levels
•Measure individual performance, then evaluate
•Provide feedback on individual performance
•Provide assistance as needed
•Reward or discipline based on performance

EMPLOYEE PERFORMANCE

PERFORMANCE MANAGEMENT OUTCOMES
Development, Productivity, Advancement, Discipline,
Pay Raises, Termination, Other

ORGANIZATIONAL RESULTS
Goals met or not met
Source: Human Resource Management by Robert L. Mathis
& John H. Jackson, 9th Edition, 2000
EMPLOYEES NEED A PUSH?
RESOURCES
Procedure Memorandum VI-24
Employee Assistance Program
Jim (2428); Maureen (x2236)
NON-DISCIPLINARY ACTIONS
Are actions that may be taken when
performance or conduct problems are first
observed and before those problems reach
a level that is judged by supervisor(s) to
require disciplinary actions
TYPES OF NON-DISCIPLINARY ACTIONS
Employee Consultation
Clarification of Expectations
Reassignment or Transfer (rarely used)
Referral to Employee Assistance Program
EMPLOYEE CONSULTATION
One-on-one session during which
supervisor makes sure the employee is
aware of the problem and the
consequences of not correcting the
problem
EMPLOYEE CONSULTATION ESSENTIALS
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Describe the behavior you want changed
Spell out why the behavior is unacceptable
State what changes need to be made
Ask the person how he or she will make the
change happen
 State the consequences
 End on a positive note
 Retain a written record summarizing the
discussion
CLARIFICATION OF EXPECTATIONS
Written summary of problem,
expectations & plan for improvement
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Type the documentation
Write in the first person (“I” and “You”)
Direct the employee; don’t suggest
Communicate clearly
Explain deficiency, nature of problem,
action necessary
DISCIPLINARY ACTIONS
Normal Sequence
1.
2.
3.
4.
5.
Oral Reprimand
Written Reprimand
Imposed Disciplinary Probation
Imposed Downgrade – rarely used
Suspension - used in special circumstances
only
6. Termination of Employment Relationship
ORAL REPRIMAND
Initial step—to make sure employee
understands there is a problem
Conduct in a private setting
Low-key (friendly, but firm)
Explain the problem(s) & ask for reasons
Corrective steps and timeline
Answer employee’s questions
Document the conversation
WRITTEN REPRIMAND
Formal documentation – includes:
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Explanation of the problem
Review of prior related actions
Immediate fixes (steps to take)
Consequences of not fixing problem
EAP clause, if appropriate
Standard “signing doesn’t mean you agree”
language
 Indication of who gets copies
IMPOSED DISCIPLINARY PROBATION
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Serious intervention
Preceded by oral and written
Similar to written reprimand
Length of probation period determined by
Supervisor and HR/General Counsel
 Approval by Dean, VP, Executive VP and
President required
OTHER OPTIONS…
Suspension Pending Investigation
 Sometimes, employee must be
removed prior to an investigation;
e.g., theft, potential sabotage,
disorderly conduct, threat to others
 MUST contact General Counsel or HR
immediately
TERMINATION OF EMPLOYMENT
RELATIONSHIP
 Final step in the disciplinary process
 Requires approval of the President
 Documented evidence of efforts made
to correct the problems leading to
discharge.
 Just cause requirement invokes due
process prior to discharge (exempt
employees
DISCIPLINARY ACTIONS
Before imposing, consider:
 Seriousness or cumulative nature of
the offense
 Correlation between seriousness of
offense and employee’s record
 Level and type of the employee’s
position—managers held to higher
standard
RED FLAGS
 “I’m being sexually harassed”
 “This is a hostile work environment”
 Any indication that discrimination is
involved (race, gender, etc.)
 Any indication that there may be health
issues (FMLA, ADA)
FAMILY MEDICAL LEAVE ACT (FMLA)
Employee Eligibility - To be eligible for
FMLA benefits, an employee must:
 work for a covered employer;
 have worked for the employer for a
total of 12 months;
 have worked at least 1,250 hours over
the previous 12 months
LEAVE ENTITLEMENT
A covered employer must grant an eligible employee up to a total of 12
workweeks of unpaid leave during any 12-month period for one or more of
the following reasons:

for the birth and care of a newborn child of the employee;
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for placement with the employee of a son or daughter for adoption or
foster care;
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to care for a spouse, son, daughter, or parent with a serious health
condition;
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to take medical leave when the employee is unable to work because of
a serious health condition; or

for qualifying exigencies arising out of the fact that the employee’s
spouse, son, daughter, or parent is on active duty or call to active duty
status as a member of the National Guard or Reserves in support of a
contingency operation.
LEAVE ENTITLEMENT Cont’d
 Maintenance of Health Benefits - If
applicable, arrangements will need to be
made for employees to pay their share of
health insurance premiums while on leave.
 Job restoration to the employee’s original
job, or to an equivalent job with equivalent
pay, benefits, and other terms and
conditions of employment.
QUALIFIED INDIVIDUAL
WITH A DISABILITY - ADA
Anyone who:
 has a physical or mental impairment that
substantially limits one or more major life
activities of such individual
 has a record of such an impairment
 is regarded as having such impairment
 is qualified for a job and can perform its
essential functions with or without
reasonable accommodation
CHANGES TO THE ADA
On January 1, 2009, the ADAAA went into effect,
making it easier for an individual seeking protection
under the ADA to establish that he or she has a
disability within the meaning of the statute.
The EEOC regulations implement the ADAAA -- in
particular, Congress’s mandate that the definition of
disability be construed broadly.
RULES OF CONSTRUCTION
1. ‘Substantially limits’ shall be construed
broadly to the maximum extent
permitted by the terms of the ADA.
2. Comparison is to most people in the
general population not a comparison to
those similarly situated
3. Assessing whether individual is
substantially limited should not require
extensive analysis
RULES OF CONSTRUCTION (cont’d)
4. Disability is still determined on a
case-by-case basis
5. Scientific, medical, or statistical
evidence usually not required
6. Mitigating measures will not be
considered
RULES OF CONSTRUCTION (cont’d)
7. Episodic or in remission limitations
will be considered as if active
8. Only one major life activity needs to
be substantially limited
9. Six month time frame does not apply
CHANGES TO THE ADA CONTINUED
 The regulations make it easier for
individuals to establish coverage under
the “regarded as” part of the definition of
“disability.”
 The regulations clarify, however, that an
individual must be covered under the
first prong (“actual disability”) or second
prong (“record of disability”) in order to
qualify for a reasonable accommodation.
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