Human Resource Blog

This is a tough issue, and basically a judgment call. Because you have already set up an action plan with guidelines for not meeting the goals, generally we would advise that you stick to it.

However, you set up the action plan and you can change it. It appears that the consequences for not meeting the training goals may not have been severe enough to motivate the employee, or to impress upon her the severity of the situation. The consequences may have been too gradual.

An action plan is just that, a plan — it is not a contract with the employee. If she comes in tomorrow and has not completed the required action steps, we assume that she will receive a written warning (plus whatever consequences are specified on the guidelines.) At that point, our recommendation would be that you amend the action plan to have more serious consequences. You may want to add the phrase *further violations will result in disciplinary action up to and including termination* to the action plan.

At your next scheduled meeting, if she has still not met the training objectives, we would recommend a three-day unpaid suspension. Any subsequent violation would result in termination. You could also schedule the meetings to assess her progress (and provide consequences) more frequently than once per month.  This course of action is a compromise between letting her go immediately and sticking with the current guidelines, which appear to be too lax.

It is not a best practice to convert an exempt employee to hourly as a disciplinary tactic. It could be justified if her lack of training prevents her from performing some of the duties of her job. Otherwise, you would be better off terminating her, rather than treat her differently from other exempt employees with the same job or duties.

It almost sounds as if this employee wants to be fired. As long as this process is consistent with the way you have handled similar situations in the past, you should have no problem with its implementation.

Sorry but we think you could have handled this situation better. The purpose of disciplinary action is to make the worker a better employee, by getting the employee to perform better in the future. It is not to assert your authority, punish the employee or prove that you have power over her.

The best practice is to follow a predictable course of disciplinary action, such as verbal warning, 2 or 3 written warnings, suspension and termination.

The question any supervisor should ask herself is, *What actions can I take that are likely to produce a better-performing employee in the future?*

Lets look at this objectively. The employee is not able to pay her travel card on time, so you are going to solve the problem by denying her the right to work overtime??? That will reduce her income, and make it even harder for her to pay her travel card on time. (If we understand your question correctly.) That almost guarantees that this employee will continue to have problems until she is terminated. (It is also very difficult to understand how the mission of the program will be advanced by having employees work fewer hours.)

If the behavior issues included not using her time at work productively, then denying her telework privliges for a specific time might make sense. You could present it as *I need for you to show me that you can be productive in the office, before we allow any more telework.* If the *behavior* issues had nothing to do with wasting work time, then this action is not going to improve the employees performance — it just makes you feel better by punishing her.

It is usually sufficient to say to an employee, *Not paying your travel card on time is unacceptable. We need for you to pay your travel card by the third of every month. Will you do that?* Accompany this with a written warning. In extreme cases, the employee might be suspended without pay. But the other punishments seem to be based more on a thirst for power, rather than a genuine desire to help the employee improve her performance.

Generally in an organization as rigid as the federal government, discipline follows very defined, progressive steps rather than allowing the supervisor to impose any penalties that she wants. As far as the union goes, we have not seen your union contract, so we cannot comment on that. If other employees have faced the same penalties for similar behavior in the past, then you may be able to justfy these actions.

Minnesota severely limits the rights of the employer to perform drug or alcohol tests. Unless this employee is involved in a safety-sensitive job (such as truck driver, fork lift operator or surgeon) you do not have the right to perform random drug or alcohol tests. (Another exception: professional athletes.)

It is far easier for a Minnesota employer to address any performance issues resulting from intoxication, rather than suspected use of alcohol.

You can certainly have a one-on-one counseling session with this employee, let him know that a coworker thought they smelled alcohol on his breath, and ask him about it. Ideally you would have this conversation the same day, while the employees inhibitions are lower. In some cases, the employee will admit alcohol use, as in *I only had two Bloody Marys before work!* or *I stopped drinking at 7 am!* If you have a company policy prohibiting the use of alcohol before or during work, then you can act on that policy.

Alcohol addiction is a disability under ADA. The best practice would be to refer the employee to alcohol treatment or rehab, rather than terminating him or her. However, ADA does not require that you tolerate repeated instances of intoxication while at work.

Also be aware that under state law, you cannot question the employee about over-the-counter or prescription medication unless the employee fails a drug test.

As difficult as this is, if the employee does not admit intoxication, our recommendation is that you let this go. An employee who comes to work drunk will eventually have performance problems as well, which you can address without legal ramifications.

Read more about this at: http://www.dol.gov/asp/programs/drugs/Said/StateLaw.asp?id=720

This is a gray area and as a California employer you should proceed with caution. It is completely appropriate for an employer to treat exempt and hourly employees differently. It is completely appropriate to treat employees in different jobs differently. However, when you treat two employees in the same job differently under very similar circumstances, you may be unintentionally committing illegal discrimination.

This action would be appropriate if the circumstances were different between the teams. Suppose one team of salespeople markets to the fast food industry; the other 3 market to full-service restaurants. During 2009, the fast food industry did well, while the full-service restaurant industry tanked. You could legitimately expect the fast-food sales team to meet their annual sales goals, while making an exception for the full-service sales teams. It would be appropriate to issue a reprimand to any member of the fast-food team that did not meet her goals.

However, suppose all 4 teams sell to full-service restaurants. If you issue a reprimand to the only Asian-American salesperson, or the only male sales person, while not issuing reprimands to other salespeople with similar sales deficits, that may be illegal discrimination.

In some cases, it is appropriate and acceptable for different supervisors to treat workers differently, or to have different expectations. For example, one hotel general manager may write up an employee who is out of uniform, while another may terminate the employee on the spot. However, when the employees are working very closely together on similar projects in similar conditions, the company needs to have some consistency to avoid the appearance of illegal discrimination.  

There is no legal requirement that an employee must be suspended, ever. This is a form of discipline short of termination that is often employed for severe infractions.

Each employer establishes their own disciplinary policies. Many employers like to include a disciplinary unpaid suspension as a final attempt to change an employees behavior before termination. Sometimes when written warnings alone are not effective, an employee on disciplinary suspension realizes the financial and interpersonal consequences of continuing their current behavior. It can be considered an adult time out.

However, some infractions are so severe that immediate termination without a suspension is warranted. Other employers simply never use suspensions.

If a company has a formal system of progressive discipline in place, the company should follow that system. Doing so minimizes the employees chance of collecting unemployment after being fired for misconduct. However, there is no legal requirement that a progressive discipline process must include suspension.

A different answer might apply if a union contract is in effect.