What To Do When Your Employer Proposes Discipline
When you get a notice from management or HR that they intend to discipline you (fire you, demote you, suspend you without pay), take these steps to present your best response.
1. Contact your union repIf you belong to a Union, now is the time to get to know your union representative. The main thing that a union does for its members is to protect them from arbitrary discipline. Some unions are better at it than others; but, all unions owe their members a duty of fair representation, and any union is better than no union when it comes to responding to proposed discipline.
2. Lawyer up? Dream on.Sure, your best defense will come if you have an experienced employment lawyer who represents workers to help you prepare your response. But, practically speaking, getting a lawyer to represent you for this purpose is very difficult. The time line is usually very short - and, unless you already have a lawyer lined up, finding a lawyer who is able to drop whatever they are doing and devote time to your case RIGHT NOW is just very hard. And, a lawyer to represent you at this step is expensive. If a lawyer's hourly rate is $350.00 per hour (which is modest), and they would expect to spend 20 hours helping you prepare a response (and, whatever you may think, that is how much time it takes), that's $7,000.00. And the lawyer is probably going to want that payment up front, before any work is done, and no part of it is likely to be refundable, unless the problem suddenly goes away on its own very quickly. Lawyers who represent workers sometimes represent workers "on contingency"; but, in a situation like this the favorable outcome is that you don't get disciplined; so, there is no fund from which the attorney can be paid on contingency. One exception may be if your situation is part of a larger problem involving unlawful employment action.
3. Gather your documentsFirst, see if you can obtain copies of those documents the employer is basing the proposed discipline on. Then, gather all the documents that you can think of that pertain to the conduct at issue. Time cards? E-mails? Memos? Expense receipts? This is the best time to obtain documents - while you are still working. Even if you are suspended you should be allowed access to your workplace to obtain documents. And, if you think of document to which you don't have access, make a WRITTEN request for those documents to your employer.
4. Witnesses?If there are other people who saw what happened, and who can corroborate your account, get something from them in writing. It doesn't have to be sworn to under penalty of perjury or notarized: you're not talking about court. A simple e-mail or hand-written and signed note will do the job.
5. Has this happened before?Consider whether the conduct of which you are accused has occurred before. Did others engage in the conduct? What happened to them? Most employers will want to act consistently with how they have acted in the past.
6. Did the employer give notice?Sometimes employers get upset about something that happened, but there is no written policy on the matter. If you can honestly say that the matter is not something inherently wrong, then you will be making a good point if you can show the employer never publicized a work rule against it.
7. Here's a checklist of factors to consider.Federal employees are subject to an elaborate system governing discipline. The following factors are supposed to be taken into account in any proposed discipline. These factors don't apply by law to other workplaces; but, these factors comprise an excellent checklist of issues for you to consider in responding to proposed discipline by any employer. They are called "the Douglas Factors". Here they are:
The twelve Douglas factors are:
(1) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
(2) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
(3) the employee's past disciplinary record;
(4) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
(5) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;
(7) consistency of the penalty with any applicable agency table of penalties;
(8) the notoriety of the offense or its impact upon the reputation of the agency;
(9) the clarity with which the employee was on notice of any rules that where violated in committing the offense, or had been warned about the conduct in question;
(10) potential for the employee's rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
8. Consider the alternativesIf you are ready to concede that the charge is substantially true, consider focusing on what should be done in response to the conduct as an alternative to the discipline the employer is proposing. Maybe you are over your head in your job, and, instead of firing you, the employer should let you "retreat" to a job you previously held in which you were more successful. Maybe a suspension is more appropriate than termination. Perhaps a written warning will suffice (especially if the work rule violated was ambiguous). The key is that the employer should not be focusing on "punishment"; rather, the employer's focus should be on preventing a recurrence of the misconduct.
9. Think ahead to unemploymentYou have to plan for the worst. You may get fired. In that event, you will want to apply for unemployment benefits to help tide you over until you find other work. Even if you are fired, you will be eligible for unemployment benefits unless you engaged in "willful misconduct". At least, that is the standard in California. But, something like that is the standard just about everywhere. The point is that, just because you were not good at your job, that isn't willful misconduct, even if the employer fires you for it. So, try to think about the facts as a matter of your inability to satisfy a standard, even though you tried your best. That will help you prevail in your application for unemployment benefits.