Discipline may be imposed to address poor performance or behavioral/conduct-related problems. Keep in mind that a supervisor typically is not an appointing authority or appointing authority designee; therefore; when the supervisor believes that disciplinary action may be appropriate, the supervisor should make the appointing authority aware as soon after the infraction occurs as possible. There are very stringent timeframes that must be observed when imposing discipline.
Within the State Personnel Management System (SPMS), there are six forms of disciplinary action:
- Written reprimand
- Forfeiture of accrued annual leave (a maximum of 15 days may be forfeited in a single action)
- Suspension without pay
- Denial of increment
- Involuntary demotion
- Termination (with or without prejudice)
Within the SPMS, we require adherence to the tenets of progressive discipline. Progressive discipline is a graduated range of responses to employee performance or conduct-related problems, which increase in severity for like infractions. Keep in mind, however, that the use of progressive discipline may not be appropriate when the infraction is serious.
In fact, some infractions are so egregious that they are causes for automatic termination. These include, but are not limited to:
- Intentional conduct, without justification, that seriously injuries someone, causes substantial damage to property, or seriously threatens the safety of the workplace
- Theft of State property of a value greater than $300
- Illegal sale, use or possession of drugs on the job
- Conviction of a controlled dangerous substance offense by an employee in a designated sensitive classification
- Conviction of a felony
- Wantonly careless conduct or unwarrantable excessive force in the treatment or care of an individual who is a client, patient, prisoner, or any other individual who is in the care or custody of this State
Before imposing discipline, an appointing authority must do several things:
- In the case of poor performance, the appointing authority must investigate the employee’s performance (including reviewing the employee’s most recent performance appraisals) or, if the discipline is related to misconduct, investigate the alleged misconduct;
- For poor performance, notify the employee of the deficiency and provide an explanation of why it is an issue;
- Meet with the employee to consider the employee’s explanation and/or mitigation;
- Determine the appropriate disciplinary action; and
- Give the employee a written notice of the action and his/her appeal rights.
The Right to Union Representation
An employee who is the subject of an investigation, and who also is a member of a bargaining unit, may request union representation in any investigatory interview or meeting, and at any disciplinary hearing discussion, conference or meeting (including settlement discussions) with the employee who is the subject of the disciplinary proceeding.
The employee must make the request for a union representative, and the union representative should be given reasonable notice to attend (not less than one hour). This right to representation extends only to the exclusive representatives and only upon request by the employee, except that once an appeal of a disciplinary action is filed the employee filing the appeal may be represented by anyone, including a non-exclusive representative.
A supervisor should know whether an employee is a member of a bargaining unit and if so, which one. If a supervisor is not sure of his or her employees’ bargaining unit status, the supervisor may obtain that information from personnel.
Time Limitations for Imposing Disciplinary Action
All disciplinary actions EXCEPT suspensions must be imposed within 30 calendar days after knowledge is gained about the performance problem or misconduct for which the disciplinary action is imposed.
In the case of suspensions, the suspension must be imposed within 5 workdays following the close of the employee’s next shift after knowledge is gained. An employee’s leave days, weekends, and holidays are not counted.
Length of Suspension
An employee who is FLSA-exempt (meaning that he or she is not eligible to earn cash overtime) must be suspended in increments of a workweek (i.e., 5 day suspension, 10 day suspension, 15 day suspension), while an employee who is cash overtime eligible may be suspended in increments of one day.
If a 5-day suspension seems excessive and the employee is FLSA-exempt, consider whether imposing a forfeiture of annual leave is a reasonable alternative.