Managing Employee Performance Issues Exploring Employment Liability ESD 112 March 16, 2015

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Transcript of Managing Employee Performance Issues Exploring Employment Liability ESD 112 March 16, 2015

  • Slide 1
  • Managing Employee Performance Issues Exploring Employment Liability ESD 112 March 16, 2015
  • Slide 2
  • Have Effective Hiring Practices Conduct effective applicant interviews Conduct effective background checks, including thorough review of references Place the employee in the role for which the applicant was hired Hire effective Supervisors/Administrators and provide on-going trainings regarding their critical role in assuring accountability
  • Slide 3
  • Communicate Expectations Let the employee know precisely what is expected Dont make the employee guess at what you want Communicate important policies and practices
  • Slide 4
  • Evaluate Employees Regularly and Fairly Routine evaluation schedules may be determined by: Statute Collective bargaining agreements District policy. Dont necessarily wait for the routine evaluation-- provide regular feedback regarding performance
  • Slide 5
  • Evaluate Employees Regularly and Fairly The primary purpose of the evaluation should be to assist employees to improve their performance Evaluations should also help supervisors to understand and be alert to all phases of a subordinates work Nothing in the evaluation should surprise the employee Nothing about the evaluation should surprise HR Deficiencies and concerns must be included in the evaluation Deficiencies and concerns should involve specific examples
  • Slide 6
  • Evaluate Employees Regularly and Fairly Evaluations should provide specific direction for improvement Supervisors and administrators should take time to thoughtfully finish each evaluation, and be prepared to offer reasons for the conclusions Supervisors and administrators must recommend appropriate action when performance is unsatisfactory Document both positive and negative observations rather than rely on conclusory statements
  • Slide 7
  • Understand the Appropriate Process The process for address performance concerns is not the same for every employee Certificated employee? Classified employee? Represented or not represented? Does CBA or Policy dictate the process? Is there a required plan of improvement or probation? Should a plan of improvement or probation be used even where not required?
  • Slide 8
  • Addressing Specific Concerns Needs to be part of larger, on-going conversation Concerns should be documented examples Can be difficult, but must be addressed Difficult conversations can be startedand often better heard better by the employeewith a statement of candor from the supervisor: Example: John, I have some concerns about your attendance that Id like to address, but Im uncomfortable having this conversation and concerned that it may discourage you. My intent is simply to have you improve and thats why I want to discuss it with you
  • Slide 9
  • Addressing Specific Concerns Conversations must be documentedthis can be by a follow-up email (let the employee know in advance your are going to follow up with an email): Example: John, thanks for taking the time to address my concerns about your attendance today. As I mentioned, this is simply a follow-up email to document our conversation so were on the same page about what we discussed.
  • Slide 10
  • Addressing Specific Concerns Identify the source of the problemprovide the employee an opportunity to discuss explanations or concerns To the degree that you can, address performance concerns as just business, not personal. Be hard on the problem, soft on the people Performance concerns are ultimately about the best use of public resources to provide the community the service to which they are entitled. Be alert to more serious concerns (e.g., substance abuse) that may need to be addressed
  • Slide 11
  • Addressing Specific Concerns Be alert to issues that could be reasonably interpreted as disability-related Dont ignore or be oblivious to the possibility of discussing accommodations with the employee Examples: John: Youre rightIve had difficulty getting to work on time for weeks now. Im not getting sufficient sleep and my doctor is treating me for sleep apnea. Mary: My blood sugar level drops significantly in the afternoon and I find that I lose my focus on my workthats when I tend to make mistakes.
  • Slide 12
  • Importance of Relationships For most Employees, job satisfaction is more closely related to work environment than compensation Supervisors should strive to be accurate, fair, and candid, but still deliver that information in a tone and manner avoids discouraging the Employee For Employees who are struggling, Supervisors should remain positive and be able to give specific objectives for an Employee to work on Accountability is for a purposenot just for accountabilitys sake and not simply to get id of employees we dont like
  • Slide 13
  • Sufficient Cause The Clarke Test: Sufficient cause exists as a matter of law where the employees deficiency is unremediable and (1) materially and substantially affects the employees performance or (2) lacks any positive educational aspect or legitimate professional purposes. State v. Vinson (2011) Sufficient cause for classified employees is the same test courts have adopted for certificated staff State v. Butler (1987)
  • Slide 14
  • Sufficient Cause The Washington Supreme Court has also said that the Hoagland factors can be helpful in teacher discharge casesalthough all eight may not be applicablein determining whether a teachers effectiveness has been impaired by misconduct or classroom deficiencies: (1)the age and maturity of the students; (2)the likelihood the teacher's conduct will have adversely affected students or other teachers; (3)the degree of the anticipated adversity; (4)the proximity or remoteness in time of the conduct;
  • Slide 15
  • Sufficient Cause (5)the extenuating or aggravating circumstances surrounding the conduct; (6)the likelihood that the conduct may be repeated; (7)the motives underlying the conduct; and (8)whether the conduct will have a chilling effect on the rights of the teachers. When the cause for dismissal is based on the employee's job performance, either one or both of the Clarke tests may apply. But application of these tests may or may not require consideration of some or all of the Hoagland factors. In contrast, when a[n] employee's status or conduct outside his or her job duties is the basis for discharge, the Hoagland factors must be considered along with the second Clarke test. Vinson (2011)
  • Slide 16
  • Sufficient Cause Seven Tests of Just Cause from Arbitration Law 1.Is the rule or order reasonably related to the orderly, efficient, and safe operation of the employer? 2.Was the employee adequately warned or notified of the work rule or performance standard and the possible consequences of failure to comply? 3.Was a sufficient investigation conducted before taking disciplinary action?
  • Slide 17
  • Sufficient Cause 4.Was the investigation fair and objective? 5.Did the investigation reveal substantial evidence of misconduct or a performance discrepancy? 6. Are the rules and expectations being applied equally, consistently, and without discrimination? 7.Is the degree of the proposed discipline appropriate and reasonably related to the seriousness of the problem and the employees history?
  • Slide 18
  • Initiating an Investigation School Districts have a duty to investigate allegations of misconduct promptly after becoming aware of it. May be triggered by simply hearing rumors May be triggered by report to outside authorities Complainant may reports alleged misconduct to: Co-worker, who then reports to district official Building administrator Classified administrator Human resources District administrator
  • Slide 19
  • Initiating an Investigation Determine what is alleged to have been violated Federal Law, State Statute, Board Policy, Professional Practices, etc.
  • Slide 20
  • Initiating an Investigation Determine who will investigate Keep in mind that anyone who conducts an investigation becomes a potential witness regarding the investigation and its adequacy. Is the investigator experienced? Credible? Objective? Will investigator establish immediate rapport
  • Slide 21
  • Initiating an Investigation Review all relevant policies and procedures Determine whether the type of investigation at issue is governed by law, board policy/procedure, or a collective bargaining agreement (e.g., timelines, reporting procedures, etc.) Communicate timelines to everyone involved in the investigation.
  • Slide 22
  • Initiating an Investigation From the very beginning, carefully document what is done during the course of the investigation. Be sure to inform the reporting party (as well as any other witnesses interviewed) to report any retaliatory concerns. Create and maintain a file of the misconduct investigation so that in dealing with any future misconduct an adequate assessment of the employees behavior can considered (Institutional Memory).
  • Slide 23
  • Initiating an Investigation When documenting the findings, determine the standard for each finding The Evidence ________________ supports that... ProveClearly KnowMore likely than not ThinkMay
  • Slide 24
  • Initiating an Investigation Remember: Documents and other records created or maintained by a public agency may be subject to disclosure under the Washington Public R