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

Managing Employee Performance Issues

Exploring Employment LiabilityESD 112

March 16, 2015

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

Communicate Expectations

• Let the employee know precisely what is expected

• Don’t make the employee guess at what you want

• Communicate important policies and practices

Evaluate Employees Regularly and Fairly

• Routine evaluation schedules may be determined by:• Statute• Collective bargaining agreements• District policy.

• Don’t necessarily wait for the routine evaluation--provide regular feedback regarding performance


• 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 subordinate’s 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


• 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

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?

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 started—and often

better heard better by the employee—with a statement of candor from the supervisor:

• Example: “John, I have some concerns about your attendance that I’d like to address, but I’m uncomfortable having this conversation and concerned that it may discourage you. My intent is simply to have you improve and that’s why I want to discuss it with you…”


• Conversations must be documented—this 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 we’re on the same page about what we discussed….


• Identify the source of the problem—provide 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


• Be alert to issues that could be reasonably interpreted as disability-related

• Don’t ignore or be oblivious to the possibility of discussing accommodations with the employee

• Examples:John: “You’re right—I’ve had difficulty getting to work on time for weeks now. I’m 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 work…that’s when I tend to make mistakes.”

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 purpose—not just for accountability’s sake and not simply to get id of employees we don’t like

Sufficient Cause

The Clarke Test:• Sufficient cause exists as a matter of law where the

employee’s deficiency is unremediable and (1) materially and substantially affects the employee’s 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)

Sufficient CauseThe Washington Supreme Court has also said that the Hoagland factors can be helpful in teacher discharge cases—although all eight may not be applicable—in determining whether a teacher’s 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;

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)

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?

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 employee’s history?

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


• Determine what is alleged to have been violated

– Federal Law, State Statute, Board Policy, Professional Practices, etc.


• 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


• 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.


• 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 employee’s behavior can considered (“Institutional Memory”).


When documenting the findings, determine the standard for each finding

“The Evidence ________________ supports that. . .”

• Prove Clearly

• Know More likely than not

• Think May


• Remember: Documents and other records created or maintained by a public agency may be subject to disclosure under the Washington Public Records Act, Chapter 42.56 RCW

• The results of any investigation or discussions concerning the investigation may be subject to discovery in litigation.

• Keep your investigation notes in a separate investigation file, not an employee’s personnel file.


• Determine Whether Any Other Party or Agency Must be Contacted as Part of the Investigation– District Administration– Law Enforcement– CPS (Document the call including name of the person you

speak to, the person’s title, and the date/time)

– Parents– OSPI– Union Leadership– Legal Counsel or Insurance Carrier


• Review all locations that physical evidence could exist

• Request/locate any relevant documents

• Identify all relevant witnesses and determine whether an interview would be helpful


Should the Employee be Put on Administrative Leave? (e.g., leave with pay pending investigation)• Do not treat administrative leave lightly—it is

generally understood by employees and the public as a precursor to termination.

• If done without justification, it can unnecessarily destroy an employee’s credibility with other staff and the public following the investigation, even if no wrongdoing is ultimately found.


Administrative leave is not appropriate simply because an investigation is occurring. Before putting the accused employee on leave, weigh the following factors: • the scope and severity of the alleged offense• the need to immediately remove an employee from contact

with students • the likely penalty imposed if the allegations are true• the reliability of the initial report• the danger of immediate re-offense• the danger of interference with the investigation.


Before Conducting the Interviews, consider:• Age of those being interviewed (when students

involved)• Notifying parents of witnesses (when students

involved)• Scheduling of interviews in relation to school day• Should someone assist with note taking?• Order of interviews• Location of interviews

Taking Action• For most employees that have an expectation of

continuing employment, conduct a Loudermill meeting with the employee to discuss the action you intend to recommend to the Board.– For employees that may not meet this test, a

Loudermill-type hearing is still a good idea.• The employee should have an opportunity to present

any explanations, evidence, or mitigating circumstances that should be considered.

• Provide the employee appropriate written notice of the action that will taken by the Board of Directors and remind the employee of grievance or appeal rights