PROGRESSIVE DISCIPLINE

Progressive discipline is a method to address work deficiencies and misconduct through counseling, warning, reprimand, or other forms of remedial action conducted in a manner which is appropriate to the employee’s behavior and the circumstances surrounding that behavior.

There is a significant distinction between poor performance and misconduct. At the earliest stages, both may be dealt with through the steps of progressive discipline. Supervisors also should address continuing performance deficiencies in the employee’s annual performance evaluation and where appropriate, a Performance Improvement Plan (“PIP”). Misconduct, on the other hand, is appropriately addressed by using progressive discipline, and each stage should reference the potential for suspension and/or termination if correction does not occur.

Problems with employee performance may occur in any job at any time. Progressive discipline provides a constructive method of problem solving for the benefit of both the employee and the supervisor.

Progressive discipline need not start at the beginning of the disciplinary spectrum. That is, if the situation warrants, suspension or even dismissal may be appropriate, even for a “first offense.”

The key to progressive discipline rests with early recognition and action rather than waiting until the problem becomes grave enough to warrant disciplinary action. Informal and formal counseling is essential to the process of correcting deficiencies in employee performance and behavior and should be used as soon as a problem is noticed. Supervisors should maintain written notes or records of such counseling.

In most cases, following constructive counseling, employees will modify their work habits or behavior to conform to the expectations and standards set by their supervisor. When an employee’s work does show improvement, the supervisor should acknowledge it. In most cases, counseling or the early steps of progressive discipline are successful and prevent the need for higher-level disciplinary action. Conversely, if an employee does not improve their work performance, disciplinary action at an appropriate level may be warranted.

In certain situations, and with guidance from Employee Relations, an employee may be placed on paid administrative leave while an investigation into the alleged work rule or policy violation(s) is completed.

• Reasonable standards of work performance must be established by the supervisor at the time of hire, and as needed thereafter, and must be clearly communicated to all staff.
• The purpose of discipline is to correct an employee’s behavior, not to punish, by making them aware of the issue and giving them an opportunity to improve.
• Employee discipline is most effective when administered promptly after the infraction(s).
• Discipline must be administered with impartiality.
• Standards of work performance and University policies must be maintained and available to employees, and employee discipline must be consistently enforced.
• The pre-disciplinary and disciplinary action taken must be related to the offense. The objective and impacts upon the individual, the group, and the University’s mission must all be considered.
• All forms of pre-disciplinary and disciplinary action must be appropriately and timely documented through written records.
• Follow-through is essential to ensure that the disciplinary action has been effective.

The below disciplinary actions outline the spectrum of progressive discipline techniques but should not be construed as a fixed rule for the management of all types of disciplinary action. There may be situations in which it is appropriate to skip specific steps and proceed directly to a higher level of disciplinary action, including dismissal.

PROGRESSIVE DISCIPLINE - GENERAL PRINCIPLES

Disciplinary action, generally beginning with a warning, must be issued by the first supervisor outside of the employee’s bargaining unit, where applicable. Supervisors should contact Employee Relations for assistance prior to issuing any disciplinary action.

Weingarten rights are named after a 1975 U.S. Supreme Court decision, NLRB v. J. Weingarten Inc., which holds that unionized employees can request that a union representative be present during an investigatory interview that could lead to disciplinary action. The employee is not entitled to have the union representative of their choice. If the employee’s preferred representative is not available when the investigatory interview is scheduled to be conducted, the employee cannot delay the investigation by demanding that the employer wait until a specific union representative is available.

Please notify Employee Relations as soon as an allegation is received that might require an investigation that could lead to disciplinary action.

In Cleveland Board of Education v. Loudermill, the U.S. Supreme Court determined that a public sector employee has a proprietary interest in their job which precludes a public sector employer from either suspending without pay or dismissing a permanent employee without providing that employee with a right to due process. The right to due process must clearly be provided before the action is imposed. The right to a grievance process after disciplinary action is taken does not fulfill the employer’s obligation.

The obligation to provide due process requires the employer to conduct a pre disciplinary meeting with employees prior to suspending or terminating them. At these meetings, the employer shall:

1. Apprise the employee of the charges against them;
2. Explain the nature of the evidence regarding the charges against them; and
3. Provide the employee with an opportunity to respond.

It is important to be aware of this significant decision, and to work with Employee Relations to comply with our obligations so as not to undermine our ability to sustain the disciplinary action taken. Please notify Employee Relations as soon as an allegation is received that might result in disciplinary action at the level of suspension or dismissal.

Supervisors are responsible for the uniform application of employer policies relating to employee conduct and discipline. Each supervisor also is responsible for maintaining standards of work performance and, when necessary, issuing disciplinary action.

Document, document, document! It is critical that supervisors maintain a supervisory file in which they keep notes about one-on-one meetings with their employees, including any pre-disciplinary action taken (e.g., counseling or letters of direction). The supervisory file also assists the supervisor when completing annual performance evaluations and is critical if lower-level intervention is not successful in changing the employee’s performance or conduct and disciplinary action is needed.

To ensure that discipline is applied consistently, supervisors contemplating disciplinary actions, whether for classified or non classified employees must consult in advance with Employee Relations.

Under the Loudermill decision, the final decision to discipline an employee is made by the appointing authority or their designee. In the case of classified employees, that designee is the Executive Director for Employee Relations. For unclassified employees, that decision resides with the appropriate cabinet officer of the University in consultation with Employee Relations.

When recommending disciplinary action, the following factors should be considered: the employee’s work history; the effect of the offense on the operation of the organization; the seriousness of the offense; the employee’s level in the organization and the effect of the employee’s behavior on other employees, students, or the public; the circumstances surrounding the offense; and previous measures taken to correct the employee.

Performance evaluations are a critical tool for supervisors because they offer an opportunity to document employees’ strengths and weaknesses on at least an annual basis. Ongoing performance problems, such as poor quality of work or a lack of cooperation, must be addressed in a performance evaluation. If an employee is disciplined during the rating year, the disciplinary action should be incorporated by reference into their annual performance evaluation and reflected in the rating(s). As noted previously, disciplinary action may lead to a “less than good” evaluation, which could result in the denial of wage increases, if applicable.

Although insubordination is one of the most serious forms of employee misconduct, the term itself and the methods available to deal with this problem are frequently misunderstood. Acts of insubordination should not be confused with other forms of employee misconduct. Specifically, an act of insubordination is defined as: “An employee’s refusal to carry out a direct job-related work order given by an administrator or supervisor of appropriate authority.” Supervisors should contact Employee Relations for assistance with an insubordinate employee.

Other forms of employee misconduct, including abusive or argumentative actions towards their supervisor or coworkers, should be dealt with through disciplinary action including warnings and reprimands, and used as the basis for the issuance of a “less than good” performance evaluation. If employee misconduct raises a safety concern, supervisors are encouraged to call 911 as necessary, and then contact Employee Relations.

DROP DURING WORKING TEST PERIOD/PROBATIONARY PERIOD

An employee who is dropped during their initial working test period, or probationary period, has the opportunity for a conference with a University designee following the notice of dismissal. This procedure derives from a Connecticut Board of Labor Relations decision (No. 1729 issued March 16, 1979) which requires that a process be established that affords the complainant “a reasonable opportunity to present [their] side of the case.” The employee should be advised of their right to request a meeting in the letter of notification. It should be noted that a conference is held only if requested; it is not an automatic system.

The conference is conducted by an appropriate supervisor or administrator with assistance from Employee Relations. The employee may bring a representative to the conference. The charge to the reviewer is to ensure that the drop was not done arbitrarily or capriciously. It is important to maintain documentation of training and notes on counseling or any other corrective actions the supervisor undertook to assist the probationary employee. The dropped employee will receive a written response from the person who conducted the conference.

Supervisors should contact Employee Relations for assistance with dropping employees during their working test period or probationary period.

“A probationary employee who is dismissed, or who is not continued, may appeal in person within ten (10) days to the office of the appropriate Provost, Vice Provost, Vice President, or designee. Within seven (7) calendar days of the hearing, the Provost, Vice Provost, Vice President or designee shall respond in writing. The decision of the Provost, Vice Provost, Vice President, or designee is final and not appealable to arbitration.” The hearing is conducted by the appropriate administrator with assistance from Employee Relations. The employee may bring a representative to the conference.

ADDITIONAL RESOURCES

A copy of University policies can be found at https://policy.uconn.edu/.  Supervisors should be particularly familiar with the following:

• General Rules of Conduct: https://policy.uconn.edu/2011/05/24/general-rules-of-conduct/
• Code of Conduct: https://policy.uconn.edu/2011/05/17/employee-code-of-conduct/
• Policy Against Discrimination, Harassment, and Related Interpersonal Violence: https://policy.uconn.edu/2015/12/29/policy-against-discrimination-harassment-and-related-interpersonal-violence/
• Non-Retaliation Policy: https://policy.uconn.edu/2011/05/24/non-retaliation-policy/

A copy of each collective bargaining agreement can be found on the Employee Relations website: https://hr.uconn.edu/labor-contracts-unions/.  Questions about contract interpretation should be directed to Employee Relations at laborrelations@uconn.edu.

Supervisors should familiarize themselves with the following services and resources offered by the University:

• Office of Institutional Equity
• Office of University Compliance
• Ombuds Office
• Employees of Concern Team
• Human Resources (Absence Management; Benefits; Workforce Solutions)
• Employee Assistance Program
  • Intake/Assessment and General Assistance: (888) 993-7650
  • First Responder Assistance: (833) 253-1129
  • Manager Consultations: (877) 249-4751 or ManagerConsult@workplaceoptions.com