Disciplinary Actions

     Employee discipline is among the most difficult functions a supervisor has to perform. Not only is the supervisor's job to maintain proper discipline in order to carry out the mission of the organization, but he is also responsible for protecting the rights of the organization's workers, ensuring fair and equal treatment for all.

     Many EMS supervisors have had little or no formal education in human resources and are unsure of themselves when faced with a situation requiring discipline. Some confuse discipline with punishment. Discipline actually involves improving employee performance through a learning process, but some supervisors see it as a "you-against-me" situation. Some companies also see their employees as "them" rather than "us." This attitude can lead not only to poor company discipline and performance, but to expensive litigation.

     There are some fundamental practices that can help a supervisor maintain discipline in a manner that is fair and equitable for both the service and the employee. At the top of the list are documentation and communication. In the last few years, the number of employment-related lawsuits has ballooned. In any situation involving a lawsuit, good documentation is one's best ally, and good communications can stave off a litigious situation.

     Next is familiarity with the laws involved. There are many laws governing employment discrimination, among them Title VII of the Civil Rights Act of 1964, 42 U.S.C., sections 200e to 2000e-17, which makes it unlawful to take adverse employment action against any individual on the basis of race, color, religion, sex or national origin. Other federal acts prohibit discrimination on the basis of age, disability, pay and certain health conditions such as HIV. All these laws are readily available on the Internet.

Employment At Will
     At one time an employee without a written contract of employment was considered to be an "employee-at-will" who could be discharged for absolutely any reason or for no reason. In recent years, this rule has been eroded by a variety of court decisions in many different states, so that today, discharges for other than "just cause" may be subject to legal challenge. Some courts will "infer" a contract from the actions of the company. For example, when an employee is told, "you have a job for the rest of your life if you continue to perform like you do," that may amount to an unwritten contract of employment.

     To avoid that, there should be a firm understanding between employee and management about the status of the employee. If employment is to be "at will," that should be prominently stated in the employment application, the company handbook, the policy and procedures manual, and from time to time in company meetings.

Defining Standards and Rules
     Employees must have a clear understanding of their duties and the work rules. When employees are evaluated, using measurable standards for objective and quantifiable goals rather than point systems or overall descriptions of performance such as "exceeds expectations" or "needs improvement" will help the employee to focus on improvement and protect the employer if a dispute arises. When an employee has consistently received "excellent" or "exceeds expectations" over a period of years, it may be difficult to justify firing that employee even over a serious act of misconduct. Some employers have ceased using evaluations and substituted realistic goals that can be measured.

     The company handbook should state the rules clearly. The rules of discipline must be laid out in specifics and followed. Consistency in application is vital, although that does not mean there is no room for judgment and flexibility in discipline. However, the reasons for variation from norms should be carefully documented. Avoid using words like "shall" or "will" in your disciplinary rules since these words may tie your hands and make it hard to fashion individually appropriate disciplinary plans.

     Some employers believe it is necessary to "build a file" on an employee it wants to ultimately fire. That may be true, but if selected employees are the only ones who have periodic notations in their files, a court can quickly deduce that the employee was being singled out for discipline. Therefore, periodic progress reports should be done on all employees.

Progressive Discipline
     Many employers currently use what is termed "progressive discipline." Progressive discipline begins with oral warnings, then progresses to written warnings, suspension and ultimately termination. Summary discharge can be employed in serious instances, such as theft, intoxication on the job, drug abuse, violence or threat of violence, and conduct that endangers a patient or violates state law or regulations. The reasons for summary discharge should be spelled out in specific detail in the company handbook and the policies and procedures manual.

     When a violation occurs, the supervisor must evaluate it carefully. It is just as bad to ignore repeated violations as it is to jump on every little mistake. It is unfair to allow an employee to make mistake after mistake, never calling his attention to them, and then summarily fire him. That employee may well have an "unfair discharge" action against the employer.

     A thorough investigation must be made to uncover all the facts of the situation. This will generally involve a meeting and interview with the employee, interviews with other employees who have knowledge of the matter, and sometimes interviews with outside individuals such as patients, physicians and other healthcare and public safety workers. Such interviews should be conducted in private and another person from management should be present. The worker should be allowed to bring a friend or representative with him; however, if he brings a lawyer, management has a right to have its lawyer present also.

     During your interview with the worker, allow him to talk freely. This should not be a confrontational meeting; rather, it should be a fact-gathering meeting. Ask for the reasons for the violation; seek out mitigating circumstances if there are any. Ask for the employee's view of the matter. One technique often used successfully is to ask the employee what course of action he thinks you should take, or if he were in your position and you were he, what he would do.

     After the initial interview, study the case carefully. Determine the seriousness of the offense, why it was committed, how much harm was done, how it affected other employees, how likely it is to be repeated, the employee's record, how his conduct compares with that of other employees, how long the employee has worked for the company, what other violations he has committed and what his attitude about the violation is. Carefully document each of these findings, then decide what discipline is appropriate.

     Sometimes summary verbal counseling is warranted and can be done on the spot; however, it should always be done privately and without anger. The manager must use good judgment about when to do this and whether to note it in the employee's file. Minor mistakes are made by everyone, and not every mistake warrants the full disciplinary process.

Corrective Discipline
     Be sure your proposed action is on the same level as actions taken in similar cases. The four levels of action generally used are verbal warning, written warning, suspension and termination.

Verbal warnings
     Verbal warnings should always be given in private, calmly and objectively. Have another member of management present, and document with a formal or informal memo in the employee's personnel file. If the violation warrants it, verbal warning may be skipped and a higher degree of discipline imposed, but be sure your employee handbook and policy manual clearly state that steps may be skipped for good cause.

Written warnings
     A copy of a written warning should be given to the employee at the meeting and read to him. The employee should be asked to sign the warning showing that he has received it, but it should be made clear that this is only an acknowledgment of receipt, not an admission of agreement with the discipline. If the employee refuses to sign it, have the other manager sign it with the notation that he is signing because the employee refused. The warning should include the date of the warning, the employee's name, the name of the supervisor giving the warning, a description of the misconduct or performance that is the basis for the warning, the date of occurrence and signature lines. Often as a part of the process an "action plan" is developed along with the employee. This is a very effective means of correction, since the employee participates in its formulation and therefore "buys into" it. If such a plan is used, it should be made a part of the written warning.

Suspension
     Suspensions may range from a number of hours to a longer period of time depending upon the seriousness of the violation. Generally suspensions are unpaid. Progressive suspensions may be used for repeat violations. However, if you intend to fire the employee for the next violation, this should be stated in writing; otherwise, the employee may argue that he was led to believe that another suspension might be given.

Termination
     Before firing an employee, carefully review his file and determine whether termination is appropriate and legally defensible. This may be the time to involve your lawyer in the process.

     Termination is a drastic measure, and it should be done with humanity and sensitivity. The termination notice should be in writing, state the reason for termination, and outline the specific conduct and rules violations that warrant termination. Choose the time for termination carefully. Many employers choose the beginning of a shift for the time of termination since other employees will be out in their trucks and not in the office area. If there is any hint that the employee might become violent, have security present.

Union contracts
     Discipline under a union contract is a different matter since the disciplinary rules and procedures will generally be spelled out in detail in the contract. Care must be taken to become completely familiar with the contract's provisions and to adhere to them strictly. There are generally notice provisions that must be followed exactly. A mistake in procedure may void the disciplinary action at arbitration.

Appeals
     If there is an appeal process, this must be stated and described in detail at the time of the discipline. If the appeals process is contained in an employee handbook, highlight that section and call the employee's attention to it. Get a written acknowledgement of receipt of advice of the appeal process.

Conclusion
     Good communications and good documentation are the keystones of employee discipline. When used correctly, discipline should be a positive action, not a negative one. It should build employee confidence and ability. Both sides can win when managers understand the goals and methods of discipline and work with their employees rather than against them.

William E. (Gene) Gandy, JD, LP, is an EMS educator and consultant in Tucson, AZ, and a member of EMS Magazine's editorial advisory board.