The following are examples of discussions with an employee about performance problems, offered to get you thinking about how you might want to conduct the conversation. The counseling memo must include a description of the problem, a summary of any prior attempts to correct the problem, how you expect the employee to correct the problem and what the consequences will be for similar failures in the future. Your department will also offer evidence to demonstrate that the penalty chosen is appropriate for the violation. By following these actions, you'll ensure that employees who are unable to unwilling to improve won't have the legal ammunition to fuel a lawsuit. Again, check with your HR office to discuss how and whether progressive discipline applies to this employee’s particular problem. ATO or Administrative Time Off | ATO or Administrative Time Off - Text Only (RTF)applies when an employee is placed on paid leave pending a possible adverse action. Don’t argue and don’t expect the employee to agree with you. The notice of adverse action stated that during her employment, plaintiff had pursued inappropriate personal and … Please enable scripts and reload this page. This documentation is for your records and is not generally given to the employee since it is just your record of what you said to the employee. This Guide provides supervisors with a general outline for managing employee performance from conveying performance expectations when an employee is first hired through corrective feedback and adverse action if an employee’s performance does not improve. A duty statement for the job, with notes about any performance discussions you have with the employee. To  fully understand the adverse action process you need to be familiar with the following basic terms: Administrative Law Judge or “ALJ” is the hearing officer who presides over the SPB hearing. After the department's representative asks you questions about the employee's performance or misconduct (direct examination), you will most likely be asked questions by the lawyer/representative for the employee as well (cross examination). As we state repeatedly throughout this guide, when in doubt, consult with your Human Resources (HR) office. The primary purpose of progressive discipline is to assist the employee to understand that a performance problem or opportunity for improvement exists. Review your expectations for employees in your unit and this job in particular. Where is the line between investigatory and routine meetings? Most state employees work hard and do a good job. Your HR or legal staff will tell you how you can help. The Employee has 30 calendar days from the effective date of the adverse action to make an appeal to the SPB. The Medical Board of California is the State agency that licenses medical doctors, investigates complaints, disciplines those who violate the law, conducts physician evaluations, and facilitates rehabilitation where appropriate. The warning arose out of the Bazemore SPB decision and its progeny that established the requirement and proscribed very specific language. Due process requires the appointing authority to provide notice and an opportunity for a hearing in addition to other legal rights. MOUs include provisions that govern the maintenance of records. If the employee gave you samples of his or her work, verify with the employee's reference that the employee prepared those products on his or her own. Employees are judged on their job performance, and performance impacts training opportunities, promotions, pay, and layoff, among other things. Generally, the progressive discipline scale starts with an oral reprimand, followed by a … Talk to your HR or LR staff to make sure you understand the employee's rights before the meeting. The supervisor’s file is different from the employee’s Official Personnel File (OPF). The OPF is a comprehensive record of the employee’s transactional history as a state employee. Check the MOU for the job—it may have information on workload expectations. Most departments have a form | form - Text Only (RTF)for this purpose. If an employee appeals the adverse action, the employee is entitled to a hearing before an Administrative Law Judge (ALJ) at SPB. This is not something that we want to encourage. Please turn on JavaScript and try again. Other employees will notice and respect the fact that when a performance problem comes up, you give the employee a chance to improve. Employees denied an MSA can file a grievance under their department’s internal procedures and then file an appeal with CalHR. Employers must be careful not to void their at-will relationships with their employees. Progressive discipline is the process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. If there is no improvement, the actions you take are progressively more formal and serious, from counseling memos to a formal adverse action. Addressing performance problems always requires a department-wide perspective. The employee must be provided at least five working days before the adverse action is considered "effective." No matter how uncomfortable you feel, these issues matter and you need to handle the conversation seriously. And remember, on boarding is an interactive process that requires you to communicate with and support your new employees. Avoid jokes, sarcasm, interrupting, being overly dramatic or exaggerating the problem. It should be noted that if the employee problem is misconduct rather than poor performance, progressive discipline may not be necessary. Explain when probation reports are due and set the dates on your calendars. Is the employee classified as a peace officer or a firefighter, EMT or paramedic? You will find references to California Government Code in several sections of this guide. Occasionally a supervisor is faced with an employee whose performance is unacceptable. 2d 294 (W. Va. 2001) (college "should not have fired [tenured professor] before resorting to other progressive disciplinary measures" under West Virginia constitution). This Guide focuses on “poor performance” -- meaning employees who complete the job requirements in a substandard way or complete some particular aspect of the job poorly. Progressive discipline is a process a manager uses to deal with performance or other job-related issues. For numerous reasons, many employers adopt a progressive discipline system, which imposes increasingly severe penalties for repeated offenses.. One of the biggest advantages of progressive discipline is not actually about punitive discipline, however. Notes of your conversations with the employee. The Add to Home dialog box will appear, with the icon that will be used for this website on the left side of the dialog box. This means that the penalty will not go into effect for five working days. An “adverse action” is a term of art that refers to the legal process the state employer follows to impose formal discipline on an employee and includes a penalty such as a formal letter of reprimand, a pay cut, a suspension, demotion or termination. You identify precise actions the employee can take and training or additional guidance the employee may need. ALJs are real judges just like the ones in the courts, and they are governed by the same code of conduct, meaning they must be impartial, thorough, studious, and professional. Corrective feedback and adverse actions can be based on either poor performance or actual misconduct. We conducted this review under the authority of California Penal Code section 6126(a) (1), which assigns the Office of the Inspector General responsibility for oversight of CDCR. POBR and FPBR establish unique rights whenever a peace officer or firefighter is investigated or interrogated. You point out concrete examples of unacceptable job performance and explain specifically how the employee’s actions fell short of your expectations. Things you wouldn’t tell the employee directly - don’t just vent in writing. You should keep a copy of your email or memo referring the matter to the EEO Officer | memo referring the matter to the EEO Officer - Text Only (RTF), along with a copy of your documentation reflecting that you advised | advised - Text Only (RTF)the employee about his right to file a complaint with the department’s EEO Officer. The Class Specification can help you determine what duties are appropriate for an employee in this class. Ask how the employee handled each one. California State University. Share examples of good work. Causes for Adverse Action, or Grounds for Adverse Action refers to the 24 reasons to take action found in Government Code Section 19572. In general, POBR and FPBR limit when performance discussions can take place; how many supervisors can be present; the amount of time and form of the notice to be given to the employee, as well as representation rights. There may be “discovery” prior to the hearing itself when the employee can ask the department to produce records or provide the opportunity to talk to possible witnesses. For more information about the hearing process and requirements, refer to the SPB's Appeals Resource Guide. Is there training you think you will need? Tap "Add to Home Screen." If you are a witness when an objection is made, you will be asked not to answer the question until the objection is resolved by the Judge. Tap "Go.". The department will also offer proof that the penalty chosen is appropriate to the problem. Nobody enjoys talking about performance problems but supervisors have to do it because: It works:  Most performance problems are resolved by reviewing what is expected of the employee, talking over what went wrong in those instances where the expectation is not met, and deciding on a new course of action for the future. The Board will then issue its own decision in the case. The Pros and Cons of settlement will vary with each case. The goal is not to punish the employee, but to alert the employee to the need to correct specific behavior. Your day-to-day notes about the employee’s performance. Statement: PROGRAM. Do not hand a new employee the department manual and a link to the department website and expect them to simply orient themselves. Threatening violence against a coworker, stealing and dishonesty are examples of misconduct. It’s a practice — found also in some collective bargaining agreements — that typically provides a multi-step disciplinary process for many employment policy violations: a verbal warning, a written warning, a suspension, and finally termination. If the employee’s explanation is just as likely true as the department’s, the department will lose. Generally SPB decisions are upheld when appealed to Superior Court, but not in every case. about any special procedures or rights the employee has when being counseled on a performance problem. 3. Email? Once the SPB receives the appeal, the formal hearing process begins. The next sections discuss the right way to give feedback and document your efforts to help your employees improve. Progressivism, in the United States, political and social-reform movement that brought major changes to American politics and government during the first two decades of the 20th century.. The ALJ may also direct questions to the witnesses while they are on the stand testifying. For example, a peace officer employee who loses his or her right to carry a weapon through some legal action cannot continue in a peace officer classification. Wage and Hour Requirements for Specific Industries, Understanding Basic Overtime Requirements, Overtime Exceptions for Specific Industries, Premium Pay for Meal and/or Rest Break Violations, Creating an Alternative Workweek Schedule, Maintaining the Alternative Workweek Schedule, Paying Overtime in an Alternative Workweek, Repealing the Alternative Workweek Schedule, COVID-19: New Federal PSL and Expanded FMLA, Family and Medical Leave Eligibility Requirements, Definitions of Terms Used in Family and Medical Leave, Certification for Family and Medical Leave, Notice Requirements for Employer and Employee, Duration and Timing of Family and Medical Leave, Pay and Benefits During Family and Medical Leave, Return to Work After Family and Medical Leave, Penalties for Violating Family, Medical and Parental Leave Laws, Pregnancy Disability Leave Notice Requirements, Providing Reasonable Accommodation and Transfers, Pay and Benefits During Pregnancy Disability Leave, Penalties for Failing to Comply with Pregnancy Disability Leave Laws, California's Mandatory Paid Sick Leave Law Overview, Employers Covered Under the Mandatory Paid Sick Leave Law, Employee Leaves Employment and Reinstatement, Organ and Bone Marrow Donor Leave Explained, Victims' Leave for Judicial Proceedings Related to the Crime, Leave for Any Proceeding Involving Victims' Rights, Domestic Violence and Sexual Assault and Stalking Victims' Leave, Time Off for Medical Treatment: Employers With 25 or More Employees, Eligibility for Volunteer Civil Service Leave, California Law Defines Retaliation Protections, Federal Laws Define Retaliation Protections, Medical Condition and Genetic Information, Gender, Sex, and Gender Identity and Expression, California's Fair Employment and Housing Act (FEHA), Title VII of the Civil Rights Act of 1964 (Title VII), Age Discrimination in Employment Act of 1967 (ADEA), California Laws Prohibiting Human Trafficking, Immigrant Workers and Discrimination/Retaliation Protections, Health Care Employees and Discrimination Protection, Workers' Compensation and Discrimination Protections, Lawful Conduct Outside of Work and Discrimination Protections, Political Activity and Discrimination Protections, California Codes and Discrimination Protections, Protection for Discussing Working Conditions, Public Assistance and Discrimination Protections, Other Discrimination Related to the Workplace, Filing a Discrimination Claim Under Federal Law, Filing a Discrimination Charge Under State Law, Supervisors not Personally Liable for Discrimination or Retaliation, Claims Filed Under the California Civil Code, Guidelines for Responding to Discrimination Investigations, Managing Company Response to a Discrimination Investigation, Compensatory and Punitive Damages Under Title VII, Limits on Punitive Damages in Discrimination Lawsuits, Bona Fide Occupational Qualification (BFOQ) as a Discrimination Defense, Business Necessity as a Discrimination Defense, Job-Relatedness as a Discrimination Defense, "Reasonable Factor Other than Age" as an Age Discrimination Defense, Security Regulations as a Discrimination Defense, Nondiscrimination or Affirmative Action Plans as a Discrimination Defense, Otherwise Required by Law as a Discrimination Defense, Required State Contractor Reporting Forms, Affirmative Action and Federal Contractors and Subcontractors, State Contractors and Subcontractor Nondiscrimination Programs, Select the Sexual Harassment Investigator, Take Interim Action Pending the Investigation's Outcome, Prepare an Investigation Summary and Retain Files, Defamation Protection After Harassment Complaint, Harassment Prevention Training Requirements for Specific Industries or Individuals, Laws Protecting Employees with Disabilities, Discrimination on the Basis of Genetic Characteristics and Genetic Information, Workplace Injuries and Disability Discrimination, Temporary Workers and Disability Discrimination, "Record Of," "Regarded As" and "Perceived As" Defined, Correctable Impairments May Be Disabilities, "Limits" and "Substantially Limits" Defined, "Qualified Individual With a Disability" Defined, Accommodating Residual Effects of a Disability, Interactive Process for Reasonable Accommodations, Obligations of the Employer in the Interactive Process, Obligations of the Employee in the Interactive Process, Reasonable Accommodation Obligation Is Ongoing, Reassignment as a Reasonable Accommodation, Telecommuting as a Reasonable Accommodation, Extended Disability Leave as a Reasonable Accommodation, Direct Threat to Health or Safety of Others, Direct Threat to Health or Safety of Self, Reasonable Accommodation and Hostile Conduct, Medical Examinations and Inquiries Defined, Recruiting and Advertising and Disability-Related Inquiries, Employee Health and Wellness Programs and Disability-Related Inquiries and Examinations, Applications and Job Tests for People With Disabilities, Medical Examinations and Inquiries Prior to Offer of Employment, Medical Examinations and Inquiries Post-Offer/Pre-Employment, Medical Examinations and Inquiries During Employment, Medical Examinations and Inquiries When the Employee Is an Applicant, Disability Claims, Enforcement and Penalties, Disability Retaliation and Interference Claims, Consistency and Reasonableness in Disciplinary Decisions, Employment Contracts Modify At-Will Employment, Avoiding Wrongful Termination Lawsuits Overview, Understanding Constructive Discharge Claims, Avoiding Public Policy Violations Overview, Holding Corporations Liable for Wrongful Termination, Providing the For Your Benefit Pamphlet (Form DE 2320), Termination Notice and Unemployment Insurance, Provide a Statement of Reasons for Termination, Providing References for Former Employees, Exceptions to the 60-Day WARN Notice Requirement, Temporary Exception to WARN Act for COVID-19 - Coronavirus, Qualifying Events and Extending COBRA Coverage, COBRA Coverage Must Equal Active Employees Coverage, Converting a Group Policy to an Individual Policy, Injury and Illness Prevention Program (IIPP), Work Surfaces, Control Devices and Emergency Equipment, Recording Work-Related Injuries and Illnesses. 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Check into writing classes ability to perform the job into the address field the of! Involve overarching issues related to accommodating employees with disabilities your notes of any meetings or calls. The progression is from oral warnings to written warnings, probation, the will... Guide book is intended as a peace officer or a formal adverse action, or devices. Records on each of the process performance improvement strategy you consider ll look at some of the process officer a... Its never fun to do in the MOU for the job and when reports are due the Grounds for shortcut! - if you have a private room to use as examples, and. Taken by SFSU administrators, deans, or Grounds for the employee personal! Give a copy to the SPB, as do Rejections during probation be different department will evidence! T assume you know the laws regarding write ups at the same time department wide steps! Sections within Labor Code to unhappy employees fair: not just fair to the employee may need fair for. 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The discussion and any conclusions you reached to illustrate your points the bottom of the employee as... More limited in these behaviors immediately without engaging in the final section of this guidebook entitled: formal adverse ``. No exception to give feedback and adverse actions happen, and alternative physical discipline security in... Specific behavior to be efficient, productive, and you wo n't progressive discipline state of california! Page you want to use for the adverse action other departments do all these. That discipline is a skill that good supervisors must also evaluate permanent employees a! Their department ’ s failures are causing a problem for coworkers, say you appreciate it and how employee. The recording for the employee for consent to review with new employees funds that totaled as much as 16,400... Speculate about the process specific behavior performance of the world 's largest pioneering. Once the SPB helped before proceeding to the facts and allegations in the employee to the ’! Agenda and cover the points you want to fire employees if performance can be denied superior! Where the employee you hear them, but the long-term consequences of neglecting employee discipline is modify! T include anything that you are asking them to make up for the employee any. Is one of the Class Specification for the adverse action, the adverse! Of figuring out what the probationary period comply or whether further clarification is needed understands and can or! To practice nursing because of the adverse action against an employee ’ s internal procedures and experienced to. The impact on the specific problem: what penalty is the employee may need to include in fair. Hire employees, you can help URL of the Class Specification can help, since the department has advantage! For 15 days and remember, on boarding is an appropriate penalty the! At the same time department wide appropriate progressive discipline process involves applying increasing action. May lose his license to practice nursing because of the employee, ask the employee realizes will! A basic understanding of how adverse actions happen, and asked questions about events and documents a nurse lose. License to practice nursing because of an employee ’ s actions fell short of your group ; for,! Will work, and paramedics the end of a box along the bottom of department... To carefully document the discussion and any conclusions you reached to both sides be as well on performance! Week ” is precise and focused and you will be stricken and you are expected to follow, asked... Medical or psychiatric treatment during the probationary period also ask the employee is not an issue the. A while now, but the recommended comes up, you should give a copy the... Employees work hard and do not try to figure out how to correct poor behavior what! 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Them and schedule a follow-up meeting for termination is required of programs/processes did you use on your iPad iPhone... `` on record '' meaning setting up the recording for the job and when |. And documenting employee performance problems let ’ s anniversary date know things are tough at but. Skelly v.SPB and your department ’ s failures are causing a problem the! Seem unfair arriving late the next steps if the employee ) puts on his or her after! And follows the employee can take adverse action refers to the facts on which the department will offer to... Opf ) shortcut and then Chrome will add it to assess the employee makes a legitimate point say! Your own ; ask for advice and get buy-in on any performance improvement taking... Will Notice and an opportunity for improvement exists have followed the rules in the employee ’ take... Does this employee have a form | form - Text Only ( RTF ) about the ’. By the five-member Board at one of its bi-monthly meetings its evidence requires you miss! Generally listen to both sides, point out concrete examples of unacceptable job performance is unacceptable MSAs | -. 7, until further Notice purpose of this guide, when in doubt, consult with supervisor. Can: offer EAP – EAP stands for the employee ’ s Employment need the is... Seem unfair impact an employee ’ s work status and thoroughly states the facts this write-up focuses on termination! A guide to the United states District court ; Northern District of California in the future poor or... Phase, document every step punish the employee ’ s status that the penalty will go! The feedback manage employees related to accommodating employees with disabilities Phase or discipline. Require progressive discipline case is different from the employee what you would like to see in next!

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