2012 Annual Pupil Transportation ConferenceJune 20, 2012Roanoke, Virginia

Employee Evaluations and Discipline: How to Handle Them Effectively andStay Out of Legal Hot Water

Yvonne S. WellfordSenior Assistant County Attorney andCounsel to the Hanover County School Board

Employee Evaluations

• Framework of an Effective Evaluation• Focus on employee’s core core responsibilitiesresponsibilities based on the position the employee holds• Develop performance targetsperformance targets for the

employee that are job-related• TieTie the evaluation to the performance

targets you developed in the prior year• Avoid commenting on the employee’s

personal life – stick to how he/she performs the job

Employee Evaluations

• Effective Evaluations Are Fair and Fair and AccurateAccurate• Be candidcandid – don’t give undeserved

charitable evaluations• Identify the employee’s

shortcomings, as well as strengths• Be constructiveconstructive• Support your comments with examplesexamples

Employee Evaluations

• Advantages • May improveimprove employee’s performance!• Will give employee fair warningfair warning of the

need for improvement• Can enhance overall moralemorale in your

workplace (hardworking employees expect you to require similar effort from all)• It’s supporting documentationsupporting documentation for

subsequent disciplinary actions and any challenges to them by employee grievance or lawsuit

Employee Evaluations

• It’s hard to explain away positive evaluations• A jury is likely to think: if it’s in if it’s in writingwriting, it must be true

Consider these examples . . .

Employee Evaluations• Conferences• Face to faceFace to face discussions of

evaluations• Conference should involve the

employee and the supervisor – not a committee• Allow the employee to respondrespond to

the evaluation, offer his or her comments and put them in writing• The employee and supervisor should

both signsign the evaluation

Employee Evaluations

• Confidentiality• Share the contents of performance

evaluations only with those who need to knowneed to know about it

Employee Discipline• Documentation• Should support the reason for and

fairness of the personnel decision• Use it because you can’t remember you can’t remember everythingeverything that may be important• Obtain the employee’s signatureemployee’s signature on all

documentation that should be included in the personnel file (evaluations, written warnings, corrective action plans)• Juries expect employers to make written

records of employee performance problems

Employee Discipline• Progressive Discipline• For problems or policy violations that can be corrected through can be corrected through counselingcounseling• Gives employees an opportunity to

choose their future course of action with a clear understanding of the understanding of the consequencesconsequences• Demonstrates that the employer took

reasonable steps to informinform the employee of the problem and provided an opportunity to improveopportunity to improve

Employee Discipline• Preparing for disciplinary action• Inform the employeeInform the employee of the specific

allegations that might result in disciplinary action• InvestigateInvestigate the facts (including

giving employee a chance to explain his/her side of the story)• Determine whether the employee

violated a policy or procedure that he/she knew or should have knew or should have knownknown about

Employee Discipline

• Stay consistent – how have others been disciplined for this problem?• Determine whether the employee has

filed any recent complaints recent complaints (including the EEOC, Dep’t of Labor or internally) about the workplace. Disciplinary action could be considered an act of retaliationretaliation.

Employee Discipline

• Reasonableness of disciplinary action• Should be related to the seriousness

of the offense – make the punishment fit the offensepunishment fit the offense• The employee’s past disciplinary past disciplinary recordrecord should be considered

Employee Discipline

• Take prompt action• Take disciplinary action when the when the problem arisesproblem arises – not weeks or months later• VEC may view employer’s inaction inaction as acceptingas accepting the employee’s misconduct

Employee Discipline

• Delivering the message• Tell employee the disciplinary action to

be taken in a meeting with the supervisor and another management team member• Tone of the meeting should be

professional and calm• Limit discussionLimit discussion to the disciplinary

action being taken, the reasons for doing so, and the consequences of further policy violations or performance problems

Employee Discipline

• The goal is to provide informationprovide information to the employee – not to debate your decision or to discuss another employee• If delivering anything more serious

than a counseling, be prepared with the written warning, corrective action plan, etc. to give to the employee• Obtain employee’s signatureemployee’s signature on

your copy to acknowledge he/she received it.

Employee Discipline• Case Study: Stein v. Churchville-Chili Central School

District• School District received parent complaints about

Stein, a bus driver• Stein had taken pictures of students, they claimed• District investigated and found Stein had numerous

performance problems and had engaged in misconduct

• Stein used profanity, drove at excessive speeds, misused the microphone on the bus, stopped the bus suddenly to throw students against other students, mocked students

• District had received complaints about Stein’s inability to get along with & control students during the prior school year

Employee Discipline

• When the District terminated Stein, he sued for age discrimination• Court ruled in favor of the District.

Why?• “The District investigated and found

credible a number of allegations . . . relating to Stein’s failure to perform appropriately as a school bus driver.”

Employee Discipline

What worked well for the District?•They documenteddocumented the complaints about Stein and their investigation of them•They investigatedinvestigated the facts•They acted promptlyacted promptly

Questions?