Corrective Discipline – Best Practices Presented by:

Erick J. Becker Partner Cummins & White, LLP • Newport Beach, CA

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Today’s Objectives      

Recognize the proper approach to “corrective” discipline Understand the importance of corrective action Learn the keys to avoiding resentment arising from discipline Understand the function of the Introductory Period Review types of corrective discipline and best practices for each Learn the important elements of each step in the disciplinary process  Examine the seven tests of just cause and how they can help avoid employment claims 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

What is Discipline?  The word “discipline” comes from the word “disciple,” which refers to teaching, training, or molding.  When you discipline someone, you teach that person the correct way to act or react in a certain situation.

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

What is Discipline? Discipline is Corrective

Discipline is Progressive

 Goal is to change behavior  No gain from punishment  Correction is less costly

 What is meant by “progressive”?  Legal requirement  Increasing the dosage

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Objectives of Discipline  To correct improper conduct and help an employee be a better worker, thus protecting his/her job security.  To improve efficiency and quality of the work force and protect the employer’s property and equipment.  To protect health and safety of employees  To deter employees from violating work rules or performing below standards  To maintain morale and teamwork  To provide justification and legitimacy for termination if necessary 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Discipline Without Causing Resentment  Many supervisors are reluctant to discipline because they don’t want employees to be “mad” at them.  How long will the employee be upset? This depends on how you conduct the discipline.  Best way to minimize resentment is to follow the “Red Hot Stove” Rule

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

The Red-Hot Stove Rule  When you touch a redhot stove and burn your hand, you learn your lesson quickly because:

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

The Red-Hot Stove Rule  The burn is immediate (there is no question of cause and effect)  You had warning (if the stove was red hot, you knew what would happen if you touched it)

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

The Red-Hot Stove Rule  The consequences are consistent (everyone who touches the stove is burned)  The consequences are impersonal (people are burned not because of who they are, but because they touch the stove) 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Probationary (Introductory) Period  Following all the steps  Counseling and of progressive disciplinary action discipline is not should still be taken necessary. If an when appropriate and employee is ever going documented to be on his or her best behavior, it will be during the probationary period. 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Probationary (Introductory) Period  The rule of thumb?

 Don’t hesitate – terminate!  Don’t wait until the end of the introductory period

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Verbal Counseling and Warnings  Verbal counseling is informal; verbal warnings are the first step of progressive discipline.  Some managers are reluctant to give verbal warnings, while others only give verbal warnings and fail to move to the next step of discipline.  Verbal warnings can be effective for good employees.  Verbal warnings must be documented in writing--this merely means making a record of the conversation. 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Written Warnings  Three essential elements of a written warning – Past – Present – Future

 You must give a copy of the written warning to the employee. Even if he/she refuses to sign it. 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Final Written Warning  Advantages versus the unpaid suspension  State it is a final warning  Past is important – summarize issues leading to final warning  Present expectations  Future violations/poor performance will result in immediate termination 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Performance vs. Misconduct  Addressed with  Corrective action corrective plus action only plan  Expectation only that  Sets out expectations no further for performance misconduct improvement  No timeline  Timeline for meeting expectations or further corrective action 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Steps in the Disciplinary Process 1. Get The Facts (who, what, when, where, why)  Review employee records  Review disciplinary guidelines for location  Check to see that the rule has been consistently enforced  Talk to any witnesses  Discuss with previous supervisor, if necessary  Make sure rules/expectations were clearly communicated

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Steps in the Disciplinary Process 2. Interview the Employee  First state the reason for the interview – what is the problem?  Let the employee explain the whole story and state his or her perspective.  Ask for reasons, not excuses.  Avoid any conclusions until you’ve heard the whole story.  Listen carefully and maintain objectivity – issue is behavior, not personality  Take good notes or obtain signed statement (if credibility is at issue) 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Steps in the Disciplinary Process 3. Consider Possible Actions  Fit facts together and consider relationship of various inputs  Consider ultimate objective: to help employees recognize the importance of rules and to follow them  Weigh possible actions in relation to disciplinary guidelines  Determine if action would be consistent with past discipline in similar situations  Determine appropriate action plan 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Steps in the Disciplinary Process Mitigating Factors  Long service  Positive performance appraisals  Legitimate explanation or excuse  Acceptance of responsibility  Honesty

Aggravating Factors  Short term service  History of unsatisfactory performance  Past disciplinary action for unrelated offenses  Lie and deny

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Steps in the Disciplinary Process 4.   

Take Action Complete all necessary documentation Obtain necessary approvals Meet with employee (be sure to eliminate obstacles and create a positive climate) – Explain what action will be taken – Explain why action will be taken – Outline future expectations and follow-up actions – Explain right of appeal through complaint procedure

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Steps in the Disciplinary Process 5. Reintegration and Follow Up  Don’t try to avoid employee or change your attitude toward the employee, which would eventually destroy the relationship.  Simply treat the person as always, showing that only the behavior was criticized --- not the person.  Re-establish coaching relationship with employee  Watch for changes in attitude and performance  Assess how well you handled the situation and how to improve in the future 2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

The Seven Tests of Just Cause       

Knowledge of rules and consequences Reasonable rules Investigation before discipline Fair investigation Sufficient proof of guilt Rule applied consistently Discipline appropriate for offense

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Questions?  Thank you for participating!  Contact info – [email protected] – Blog: http://www.cumminsandwhite.com/about/bl ogs/employment-blog/ – Twitter: https://twitter.com/CW4Employers

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM

Corrective Discipline – Best Practices Presented by:

Erick J. Becker Partner Cummins & White, LLP • Newport Beach, CA

2424 S.E. BRISTOL STREET, SUITE 300 || NEWPORT BEACH, CA 92660 || 949–852–1800 || WWW.CUMMINSANDWHITE.COM