Are you being disciplined appropriately?

The "Rules" for Disciplinary Action

Your Right To Representation and Due Process

Article 22, Section A of your contract with the University states that the University has the right to discipline its employees as long as they can prove that they have a good reason for doing so:

Employees will be disciplined for proper cause. Disciplinary actions may include: 1) written warnings/notices; 2) suspensions; and/or 3) dismissals. Oral Counseling/notices are not considered disciplinary actions.

Section B of this article goes on to state that "The University believes in a corrective based system that is progressive in nature and will utilize such when the University believes that it is appropriate."  United Staff-UNM believes and most judges will agree that, in most cases, it is not appropriate to suspend an employee for being late if it was the very first time that they were late.  However, if an employee came to work and did something that threatened the health and/or safety of the people around them, it would be appropriate for the supervisor to move immediately to a more severe form of discipline.

Section B also states that "the level of discipline will be based on the frequency and/or severity of the infraction.  United Staff-UNM agrees that the level of discipline should correspond with the severity of the offense as well as whether the employee has established a pattern of behavior which needs to be addressed.  Progressive discipline protects employees from being arbitrarily disciplined for minor offenses that may be corrected easily with an oral counseling or other form of corrective action.  If the alleged conduct continues or becomes a pattern, however, progressive discipline enables a supervisor to increase the level of discipline up to and including dismissal.

Are you being disciplined appropriately?

The rule of thumb for an employee to consider when trying to determine whether they have the right to progressive discipline is:

1) Does the alleged offense threaten the health and/or safety of the employee or their colleagues, clients, or students?

2) Does the alleged offense violate any federal, state, or local laws?

If you can answer "no" to both of these questions and you have concerns regarding the severity of discipline you receive, you should contact the United Staff-UNM office to discuss your options.

The "Rules" for Disciplinary Action

Although the University has the right to discipline its employees, your contract provides rules that must be applied to disciplinary actions.  As we said earlier, the level of discipline must be based on the frequency and/or severity of the infraction.

According to the contract, written warnings/notices are forwarded to the employee’s personnel file maintained by the Department of Human Resources. This warning/notice should include:

a) the nature of the problem, including reference to any oral counseling(s), warning(s)/notices(s), and performance review discussions;

b) the policies or rules violated (if any);

c) the specific action to be taken by the employee and/or supervisor to correct the problem, including specific time frames if appropriate;

d) a statement that further disciplinary action, up to and including discharge could occur should the problem persist; and

e) a statement that disciplinary action may be appealed through the Grievance Procedure, Article 24 of your contract.

It is important that any written warning you receive have all of this information included.

Suspensions and Discharges are more severe levels of disciplinary action.  Employees must receive notice of the contemplated action prior to the supervisor issuing a suspension or discharge.  The notice of contemplated action must include:

a) the acts which the supervisor believes constitute the reason for the disciplinary action;

b) a summary of the evidence against the employee;

c) the contemplated action;

d) the employee has ten calendar days from the receipt of the notice to respond orally and/or in writing to the contemplated action.

The University has thirty calendar days from the receipt of the employee’s response or response period to make a final decision on what action to take and serve the employee with a written notice of the final action. The final action notice must include:

a) the final action to be taken;

b) the acts which constitute the reason for the disciplinary action;

c) a summary of the evidence;

d) the effective date of any disciplinary action; and

e) a statement that the employee may appeal the disciplinary action within fifteen days through the Grievance Procedure, Article 24 of your contract.

It is important to note that grievances concerning suspensions of fifteen days or more and/or discharges begin at step two of the grievance procedure which is a hearing with the Dean or Department Director.

Your Right To Representation and Due Process

Dues-paying Union members have the right to choose Union representation during meetings where disciplinary actions are being announced.  Non-union employees have the right to choose their own representation.   If you are called in to a fact finding meeting, this is not considered an announcement of disciplinary action, however you should inquire if such a meeting may lead to disciplinary action.  If the answer is "yes", we encourage you to contact the United Staff-UNM office for guidance before attending this meeting.

Employees have the right to appeal any disciplinary action taken by the University through the new Grievance Procedure if requested within fifteen calendar days after the action is taken.  Time lines are very important.  If you do not file your level one grievance within that time period, you forfeit your right to the grievance procedure on this action. 

Finally, employees have the right to be placed on administrative leave with pay while an investigation is being conducted if they have been removed from their regularly assigned duties.  This leave with pay shall continue until a decision is made as to the disciplinary action, if any, which will be taken by management.

Knowing How Supervisory Documentation Works

The primary purpose of documentation is to help employees improve their performance.  Progressive discipline means employees are given an opportunity to improve their performance rather than being summarily punished for relatively minor infractions in the workplace.  The following steps are considered an effective method for dealing with concerns related to employee performance.

(1) Oral Directives: The first component of a basic documentation system is an oral directive. A supervisor notes a problem and a brief oral directive is given to the employee.  Oral directives are a useful starting point in correcting minor problems and onetime incidents.

(2) Notes to the File: The second component of a basic documentation system consists of drafting "notes to the file."  Such notes are helpful (1) when a problem continues to recur, (2) when the supervisor feels that his/her oral directives are not catching the employee’s attention, or (3) when the employee’s behavior shows a pattern of noncompliance.  These informal notes need not be copied to the employee but instead to be used by the supervisor as "flags" to keep track of what might develop into an area of concern.
 

(3) Specific Event Memos: The specific event memo documents a single observed behavior or problem that a supervisor considers serious enough to be "written up".  The memo should contain a concise statement of the unsatisfactory behavior being observed and the directive given to the employee to address the problem.

(4) Conference Summary Memos: When a serious problem or pattern of problems occurs such that a formal conference is needed, after the conclusion of the meeting the supervisor should prepare a "conference summary memo."  The supervisor should deliver a copy of the memo to the employee to document the directives given at the conference. The purpose of the conference summary memo is to record (1) the facts underlying the problems addressed at the conference, (2) the employee’s response to the charges, (3) the supervisor’s conclusions, and (4) the directives given to the employee.  During the conference, the supervisor should determine whether there are additional facts of which she was not aware and whether there are mitigating circumstances that cast a different light on the proposed directives or discipline being considered.

5) Entries to the Personnel File: The last component of basic documentation is a memo to the personnel file. This serves to document patterns or recurring problems or behaviors.  This form of documentation can be used as proof that the employee was given ample notice of and time for required remediation. It also goes to establish that other components of documentation along the continuum of the system were used to communicate concerns regarding employee performance.

(6) Employees Right to Respond: Employees have the right to respond to any level of this documentation system. Employees’ written responses should be attached to the original document.

(7) Employees Signature Required: Employees shall sign each document as "I have received this document.  I understand that if I disagree with any portion thereof, I have ten (10) days in which to file a written response."

1 Aldridge, John. Effective Documentation for Personnel Decision-Making. Texas School Administrators’ Legal Digest, Vol. 8, Number 7, August, 1992.

*Although the University is not contractually obligated to follow these steps, US-UNM encourages the University to use this section as a guide to progressive discipline.