By Deborah Hopkins, March 15, 2017
In response to last month’s article about letters of counseling doing more harm than good (Another Reason to do Away with letters of Counseling), I received the below letter. Since this covers questions a number of you have, I figured this Newsletter was a good place to post and reply.
I read with interest the article you wrote that warns that supervisors may be better off not putting letters of counseling in an employee’s file. I am an Administrative Officer and assist our managers with labor/employee relations issues. I frequently advise managers to start with counseling memos to try and address unacceptable performance and misconduct. However, we have noticed a trend where our union is filing grievances and taking these cases to arbitration alleging they are discipline when they are not. Fortunately, we’ve settled at mediation before an arbitration hearing. Your article cautions that EEO cases are now being built on the issuance of counseling memos. This is very frustrating for managers trying to get their employees to do the right thing.
What would you suggest a manager should do to build documentation to support an actual disciplinary action if they are not to issue counseling memos to an employee? Would you suggest that they simply have a verbal counseling and the manager write a Memo to the file to record this discussion? Would it be okay for a manager to send an email message to the employee summarizing the conversation?
Just wondering what a manager can do. If they don’t have a way to prove the employee was put on notice of their unacceptable conduct before taking disciplinary action, it will be more difficult to prevail when actual discipline was issued.
Any guidance would be greatly appreciated. Thank you!
Dear FELTG Reader,
Thanks for the note.
Let me start by clarifying that there are different procedures for performance and misconduct.
In performance situations, the employee has to be given a performance plan. There’s no requirement to document unacceptable performance prior to placing the employee on a PIP. Therefore, you issue the plan, wait until you conclude that the employee is performing unacceptably, then initiate the PIP. No prior warnings or counseling are required here. If the employee fails the PIP, you can propose removal. Easy peasy.
Let’s move over to conduct now. In misconduct situations, the employee has to be on notice of the rule; he does not have to be warned that he has broken the rule. As long as the employee knows the rule, prior written warnings are not necessary to discipline. Lehnerd v. OPM, 55 MSPR 170 (1992). To tell an employee the rule, email works best. There doesn’t need to be a warning that they’ve engaged in misconduct in the past because that triggers optimism bias and a possible EEO complaint in which the employee tries to defend herself.
Let’s hash this out a little more.
In some cases, “counseling” an employee might help. For employees who just need a little coaching or guidance, a talking-to is often all they need to get better. If so, great – these are not the employees who are going to file a grievance or an EEO complaint. But a problem arises when the counseling gets memorialized into an official letter or document that goes into the OPF; as you’ve mentioned, employees grieve these (or file EEO complaints) and it’s terribly inefficient because these documents serve no necessary purpose in progressive discipline.
We don’t have exact statistics, but from our FELTG experience we see that employees are far less likely to grieve a verbal counseling session than they are a written memorandum. Personally, I think there’s something about the tangible letter going into an actual file that gets them riled up or scared or upset. Could an employee grieve a verbal meeting; sure, probably, but it’s not as tangible as a letter that says, “You were bad.” It’s inefficient, because these letters lead to things like mediation and arbitration but they can’t be used as the basis for progressive discipline. Can they be used to go to notice? Sure. But hang with me; we have a more efficient method we recommend to managers who are dealing with misconduct.
Here it is:
Step 1 – If there is a question about notice, the supervisor should talk to the employee to put him on notice of the rule. Send the employee an email after the talk, recapping the conversation. This helps provide documentation of notice without it being a formal memo put in an OPF. Remember, memos or counseling letters don’t count toward progressive discipline. In addition, the supervisor should take hand-written notes about the discussion she had with the employee, and should also make notes about the employee’s conduct following the discussion. (We suggest keeping a separate notebook for each employee, so if a case goes to discovery only notes relevant to this particular employee get submitted to the record.)
Note: this step is not necessary if the supervisor can show the employee was already on notice of the rule before they broke the rule. For example, if the employee attended a training session about a work process and there is proof the employee attended (a sign-in sheet, for example), and the employee’s misconduct is tied to something about the work process he learned in that training session, then the sign-in sheet provides documentation that the employee was on notice. In other words, employees don’t get free warnings about every act of misconduct if they already knew what the rule was.
If there was sufficient notice, we recommend skipping the counseling memo and going directly to a reprimand. Reprimands hold weight in progressive discipline. If you have an employee who has potential to get better, a reprimand will work just as well as (if not better than) a counseling memo. And as a bonus, if the employee doesn’t get better, we’ve already taken care of a step in progressive discipline by issuing a reprimand, and can move on to a short suspension next. Can they grieve it? Sure. But they can grieve a counseling memo too, and that doesn’t count as discipline. So, it saves time and effort to go directly to a reprimand. It’s as efficient as we can be, given the nature of our business.
So, depending on notice, here’s the Discipline Three-Step:
Step 2 – Reprimand
Step 3 – Short suspension
Step 4 – Removal
I know this can be frustrating; you have colleagues across the government who write letters to us about this very thing, every week.
I hope this helps. Keep the faith, and good luck!