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Like any other employer, townships have a constant interest in maintaining an efficient operation. This relies heavily not only on fiscal management, but also effective personnel management: the ability to recruit capable employees, appropriately correct those capable employees who stray from performance expectations, and appropriate separation of those employees who are not salvageable. Stated simply, effective management inherently relies on a lawful corrective action process that allows the township to set, and enforce, its expectations for personnel. This E-Letter explores that corrective action process.

Being disciplined or terminated is a traumatic experience since it involves criticism and requires the employee to acknowledge that he or she has not been performing adequately, thus affecting his or her self-perception. Much too often, however, employees are disciplined or discharged for poor performance, yet their personnel files are full of “satisfactory” or “exceptional” evaluations—if there are any evaluations or feedback in the file at all. This creates a conflict between the “paper trail” and reality. Even worse, it perpetuates the gap between your employee’s perception and the hard reality. This inevitably leads to difficulty when your township is faced with the task of justifying its employment decisions. It is in this space that a strong corrective action process can be of tremendous help.

Legal Restrictions On The Corrective Action Process

In this day and age, a supervisor or department head’s first thoughts when considering discipline or discharge are: “What if she sues me over this?” or “I can’t do that, because he will sue us!” That reaction is understandable and not without merit. Employers and, in many cases, the individual decision makers may indeed be defendants in a state or federal employment lawsuit. Because of this, township officials and management teams should be mindful of the many, many laws governing their actions. Federal laws like Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and state laws like the Whistleblowers’ Protection Act, the Elliott-Larsen Civil Rights Act and the Persons with Disabilities Civil Rights Act establish broad protections for employees. These protections include prohibitions against discrimination in employment on the basis of age, race, sex, national origin, disability status, marital status, height, weight, the use or attempted use of certain types of leave or exercise of statutory rights, and for an employee’s refusal to violate a law. Additionally, state and federal law both prohibit employers from disciplining or discharging employees based on their participation in concerted labor activity—even if no township employees are in a union!

With this depth—and breadth—of statutory protection, virtually every employee fits within some classification of persons protected by a state or federal statute. This is not meant to scare or hinder township officials or management teams from dealing with their employees, nor is it meant to prevent sound corrective action. Instead, it is a gentle reminder that potential landmines exist in any corrective action process, and they can and should be monitored—and avoided.

The Corrective Action Process

Few would disagree that the best first step in the corrective action process is ensuring all employees are aware of the Township’s expectations and standards. If your township already has an employee handbook or personnel manual that dictates the terms and conditions of employment, then you’re already ahead of the game. A handbook or manual is the best vehicle to provide notice of established policies, procedures and standards because it presents the rules in a central location and (hopefully) in an understandable manner. Maintaining your handbook also enhances employees’ sense of job security by reassuring them that you will not stray from an established procedure or expectation and that each employee will be treated consistently.

More specifically, the handbook or manual should contain a section that sets forth procedures for disciplining and discharging employees, even if it simply states that progressive discipline will guide the township, except in extraordinary circumstances. Similarly, every township should have a standards of conduct policy or a non-exclusive list of punishable offenses. That list of offenses should include a disclaimer (i.e., “dischargeable offenses include, but are not limited to the following….”) because situations may arise that cannot be foreseen. At-will employers should include a statement in the handbook that the list of offenses should not be construed as modifying or deleting the at-will employment relationship and those employers with employees in a union should be mindful of the appropriate provisions of the collective bargaining agreement that is in place between the parties.

What is your Goal?

The goal of a discipline is not punishment: instead, it is and must be corrective in nature, designed to prevent undesirable (or unacceptable) conduct from reoccurring. The majority of the time, employees want to be successful and are willing to the correct the issue in order to better themselves. Most employees simply need coaching or guidance to improve and be successful.

However, if the conduct or unacceptable performance continues, or is severe enough by itself, termination may be necessary. The goal of the termination process is to bring about the end of the employment relationship as painlessly as possible for both the employee and the township. It likely goes without saying that another goal in both discipline and termination is to place the township in a position where it can successfully defend its employment decision before a court or other fact-finder should its decision be challenged.

Overall, the act of issuing a disciplinary action and discharging an employee are very similar in nature. Once the decision has been made, it must be carried out promptly and professionally. No matter what the cause, the act of issuing a disciplinary action or discharging an employee is never easy.

What Does an Effective Corrective Action Process Entail?

Simply, corrective action must not be undertaken without first fairly and honestly evaluating the circumstances giving rise to the perceived need for discipline or termination. If the township asks the following questions, it will be gathering the facts necessary to demonstrate a good faith reason for your decision—the gold standard in employment law.

1. What is the reason for the corrective action? (Is it a legitimate, non-discriminatory reason?)
2. Do you have documentation or evidence to support the reason for your decision?
3. Have you spoken to the employee to obtain his or her version of the story? (There is always another version!)
4. Have you spoken to all potential witnesses?
5. Have you reviewed your policies or union contract provisions, and can you tie the problem conduct to those policies or provisions?
6. Has the employee been treated in a manner that is consistent with the guidelines set out in the employee handbook or other established policies of the workplace?
7. Has the employee been treated in a manner consistent with other employees who have committed the same violations?
8. Has the employee complained of discrimination, harassment, or failure to accommodate a disability?
9. Does the discipline or discharge appear to be in retaliation for any previously filed discrimination claim or charge?
10. Is the township prepared to communicate the decision to the employee, without overstating or understating the reasons for the decision, and being sure to avoid inconsistent statements by management?

In other words, document everything so that you:

• know the reason for the discipline;
• confirm that the reason is consistent with township policy;
• assure you have adequate support for your analysis and conclusion;
• conduct a fair and complete investigation;
• allow the employee to be given an opportunity to refute the charges and/or vent; and
• uncover any indications that the employee could be disciplined for an illegitimate reason.

The Crucial Conversation and Confrontation

Township officials and management teams must not run away from a personnel problem merely because it will be difficult. It is vital that you handle the issue and manage the employee appropriately: have the crucial conversation with your township employee whose conduct or performance falls below standards so you do not perpetuate chronic problems, which cause cancers within the workplace. As discussed in the books “Crucial Conversations” and “Crucial Confrontations” by Kerry Patterson, Joseph Grenny, Ron McMillian, and Al Switzler: start and speak from the heart; look at the individual; make it safe to talk about anything; know when you are angry and off course; speak persuasively, not abrasively; and know how to listen. Learning and truly understanding these hallmarks improves the ability to have these crucial conversations and confrontations within the corrective action process. This can reduce or eliminate the fear or trepidation you may feel when engaged in personnel management, and allow you to stay focused and implement a thorough but thoughtful corrective action. These situations can always be difficult, but if done correctly, both parties can still respect each other.

A Word About The “Verbal Warning”

We have all heard the term “verbal warning.” In today’s world of litigation, however, no discipline should only be given “verbally.” All disciplinary actions should be recorded in writing. The written discipline should contain the employee’s name, date issued, date of the incident, a brief description of the employee’s conduct or violations which led to the corrective action, the name of the policies violated, contain a list of all prior disciplinary actions and be signed by the employee and the manager. A standard template is always recommended.

Special Items to Consider in the Termination Process

Even when your decision to discipline or discharge an employee is lawful, claims may be brought based solely on the manner of discharge. The claims brought against townships most frequently because of a flawed corrective action procedure or flawed discharge procedure are discrimination claims, workplace rights claims, defamation, invasion of privacy and retaliation claims.

• Bring a witness to the termination meeting.
• State the reason(s) for the decision truthfully, without overstating or understating the factors that led to the termination.
• Remind the employee that he or she must return all tools, uniforms, keys, etc.
• Maintain compliance with any applicable wage payment laws, severance policies, administration of benefits and insurance law requirements, and explain those to the employee.
• Michigan’s Payment of Wages and Fringe Benefits Act requires an employer to pay all wages due and owing to an employee who has been terminated “as soon as the amount can with due diligence be determined.” Remember, you cannot deduct anything valid from an employee’s wages without his or her written consent.
• The Fair Labor Standards Act requires that exempt employees be paid their entire salary for a workweek in which they perform any services—even just an hour’s worth!
• Likewise, under the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), terminated employees of covered employers must be offered the opportunity to obtain health care continuation coverage.
• In some situations, a pre-dispute release might be necessary or recommended. A pre-dispute release is an agreement between the Township and the discharged employee, under which the employee agrees to release all claims he or she might have against the employer in exchange for money and other consideration. The “other consideration” is often outplacement services, a positive (or at least neutral) recommendation or a continuation of employee benefits the employee is not otherwise entitled to continue.
• If the employee would like to conduct an exit interview afterwards, or on the employee’s last day after the employee has resigned, then two management representatives should be present to take thorough notes about what happens during the exit interview. Statements made by an employee during an exit interview are often helpful in defending against later lawsuits.

Conclusion

The corrective action process can be a distressing experience for both the employee and the township decision maker who must deliver the discipline or termination decision. An effective and lawful corrective action process requires you to review all the facts, law, and the township’s own policies and procedures. This process can be overbearing and you should not feel shame or fear in seeking guidance from your human resources department or other expert in labor and employment. Why? Because the cost of a misstep in personnel management through the corrective action process can negatively impact not only the employee, but the township within its workplace—and its budget in the face of a lawsuit.

— Helen “Lizzie” Mills & Ryan P. Stecovich

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.