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600 E Boulevard Ave
Dept 113
Bismarck, ND 58505-0120

Phone · 701.328.3290
Fax · 701.328.1475
Email · hrms@nd.gov

Employment Verification · 701.328.2677

Management: Performance Management

Discipline

What It Is?

Discipline is most often associated with those actions that must be taken from time to time to correct employees' poor performance or for a violation of work rules and policy. Discipline also provides a tool for maintaining an expected work standard that must be taught and reinforced through communication in daily work activities.

Depending on the circumstances, communication to employees may have to take the form of formal and decisive action. Supervisors must be able to recognize when disciplinary action is necessary and to determine the appropriate type and level of action. Early detection and analysis of a performance problem will most often provide supervisors an opportunity to take appropriate action.

Purpose

Discipline is used as a tool to maintain the expected level of employee performance. When used effectively, discipline provides the corrective adjustments that may be needed to manage performance and ensure the well being of all employees.

Early Attention Is Important

A supervisor must ensure an employee understands what is expected in terms of work performance and working relationships. In the early stages of an employee’s performance management, there is the opportunity to educate and provide training as necessary. This should be done before an employee assumes an unacceptable working standard or behavior pattern that appears acceptable because it was not challenged and corrected by appropriate supervision.

When the expected standards have been clearly communicated to an employee and corrective action becomes necessary, early action can be accomplished in a cooperative environment. This also allows a supervisor to gain important feedback even while the corrective action is taking place. Actions at this stage of performance management are sometimes referred to as "positive" discipline because they provide the employee the opportunity to become aware of the performance problem and to be directly involved in the resolution.

For the supervisor, this may be considered as "preventative" action. The goal is to take action early, in a positive tone, in an effort to prevent the need for stronger action later.

The more common actions at the "positive discipline" stage would include brief discussions on a specific action an employee took or failed to take. If not effective, these could lead to more formal counseling on a specific issue. Two-way communication needs to occur, with the employee having opportunity to provide input relating to the performance or behavior problem.

Documentation Is Always Necessary

Supervisors must, from the very beginning, maintain some formal documentation to record the action being taken. This serves two purposes. First, the awareness that progress is being formally recorded may encourage an employee to take the situation more seriously and respond more positively to the actions. Secondly, the documentation will provide a record, if needed, to support more stringent action in the future.

The Serious Offenses

When early corrective action does not result in the required level of performance, supervisors must decide on more severe and formal action. At this point, the supervisor will have exhausted the "positive" disciplinary options. Both the supervisor and employee are aware of the performance problems; however, the employee has not corrected the performance deficiencies.

Progressively poor performance may not be the only circumstances requiring more severe action. Serious rule violations, especially those that relate to safety issues and those that violate the rights of other employees, will also require more severe and decisive action.

Severe Actions Are More Structured

In the public sector, the disciplinary process is formalized and requires following a structured procedure. This procedure becomes more defined as the severity of discipline increases.

The structured nature of applying disciplinary actions is often interpreted to mean a supervisor must follow a pattern of progressive disciplinary actions. Progressive discipline is generally defined as discipline taken in steps where each succeeding step is considered to be more severe. Progressive discipline usually follows a pattern of oral warnings, written warnings, a last step option such as suspension, and finally termination of employment.

North Dakota Administrative Rule 4-07-19-04 requires use of progressive discipline.  However, the rules are sufficiently flexible to allow an appropriate level of discipline without following a rigid pattern of actions. The intent for requiring progressive discipline is to encourage supervisors to take some action at the earliest sign of a performance problem.

It is more important that the documentation of performance be progressive. This means a supervisor should begin to document poor performance from the first instances of infraction. The most common documentation is that which occurs in conjunction with performance evaluations. Other documentation occurs in conjunction with incidents of performance or rule violations that need correction or improvement. These may be documented in brief supervisory notes to identify the activity, times, etc.

A record of progressive documentation provides the basis for the more severe disciplinary actions. It shows the attempts by the supervisor to allow an employee an opportunity to correct a performance deficiency or to understand the impact of rule violations.

Specific Requirements for Disciplining Public Employees

When dealing with public employees such as state government employees, we are bound by the United States Supreme Court decision in Cleveland Board of Education v. Loudermill, 105 S. Ct. 1478 (1985). This is often referred to as the "Loudermill" case.

The Loudermill decision established that public employees who have a property right in their employment are entitled to a pre-termination hearing. Under Loudermill, any state employee who may only be terminated for cause has a property right in his or her state employment and may be deprived of that employment only after receiving due process in the form of a pre-termination hearing.* Thus, classified employees of state agencies must be provided a pre-termination hearing when certain disciplinary actions are taken.

A pre-termination hearing includes a pre-action notice and an opportunity to respond. This must be done before any disciplinary action that affects the "property rights" of the employee, i.e., that which results in a loss of pay and/or employment. Current administrative rules require a written pre-action notice when considering suspension without pay, demotion with a loss of pay, or termination of employment. Additionally, a written final notice of action must be provided to the employee.

There are certain required items of information that must be included in the pre-action and final notices. Since these are critically important, a supervisor should seek assistance in preparing the notices. A representative from Human Resource Management Services is always available to assist in these actions. A review of documents by the Assistant Attorney General assigned to assist agencies in human resource matters is strongly recommended. Supervisors must always be aware of their own agency’s policy on disciplinary actions.

Summary

Management of employee performance by supervisors involves a spectrum of actions, which should begin immediately upon identification of a performance problem. Early attention to resolving performance problems can often prevent the more complicated disciplinary actions that may be required later. During the early stages of performance management, there is an opportunity to involve the employee in the process, and this will often provide an open line of communication that can be helpful throughout the process.

When disciplinary action becomes necessary, however, supervisors must follow proper procedures. Throughout the process, a human resource officer from Human Resource Management Services can provide significant guidance. A visit with an Assistant Attorney General will most often be appropriate.

An Alternative to Discipline

In recent years, mediation of issues relating to employee performance and behavior has become a popular option. Mediation is most often successful when disciplinary problems occur or become unmanageable because of a communication deficiency. Supervisors should always consider mediation as an alternative, as there is nothing to lose and much to gain in using a process that has no significant cost associated with it. Mediation services are provided by Human Resource Management Services. Either a supervisor or an employee may request mediation services. More information on this alternative can be obtained from Human Resource Management Services.

Where to Get Information and Assistance

* Memo, April 4, 1986, from Laurie J. Loveland, Assistant Attorney General, Office of the Attorney General, Re: Pre-termination Procedures.

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