Managing Difficult Managing Difficult Personnel Personnel ScenariosScenarios

Susan Graham, Myra Handy, Susan Graham, Myra Handy, & &

Pietro LynnPietro Lynn

Managing Problem Managing Problem EmployeesEmployees

Public employment v. private Public employment v. private employmentemployment

At will employmentAt will employment Constitutional rights and Loudermill Constitutional rights and Loudermill

processprocess Discipline for just cause for union and Discipline for just cause for union and

non-union employeesnon-union employees Evaluation as a tool to support Evaluation as a tool to support

disciplinediscipline

Public Employment Public Employment Property Interest in employment Property Interest in employment

triggers constitutional guaranteestriggers constitutional guarantees Loudermill due process requirementsLoudermill due process requirements Pre-deprivation hearing (informal)Pre-deprivation hearing (informal) Post deprivation hearing (impartial Post deprivation hearing (impartial

hearing body, right to attorney, cross hearing body, right to attorney, cross examination)examination)

Consequences for failure to follow Consequences for failure to follow proceduresprocedures

Hiring Letters to Maintain Hiring Letters to Maintain At-Will StatusAt-Will Status

You are hiredYou are hired

You will be paid per hour/salaryYou will be paid per hour/salary

If your employment ends before the If your employment ends before the end of the year, you will be paid on a end of the year, you will be paid on a pro rata basispro rata basis

Just Cause to Support Just Cause to Support DisciplineDiscipline

Reasonable to discharge given Reasonable to discharge given conduct. Focus on how others treated conduct. Focus on how others treated for same. Absent comparison, use for same. Absent comparison, use common sense.common sense.

Important to have evenhanded Important to have evenhanded application of rules.application of rules.

Fair notice was given to the employee Fair notice was given to the employee that the conduct could lead to that the conduct could lead to terminationtermination

How to Determine Just How to Determine Just CauseCause

Punishment must fit the crime—Punishment must fit the crime—ProportionalityProportionality

Factors to consider: (1) longevity with Factors to consider: (1) longevity with district; (2) staleness of the performance district; (2) staleness of the performance problems;(3) consistency with other problems;(3) consistency with other actions with the employee;(4) consistency actions with the employee;(4) consistency with action against other employees; and with action against other employees; and (5)the severity of the infraction(5)the severity of the infraction

Misconduct v. Negligent PerformanceMisconduct v. Negligent Performance

Progressive Discipline for Progressive Discipline for Negligent PerformanceNegligent Performance

Right to hear criticismsRight to hear criticisms Right to have an opportunity to Right to have an opportunity to

improveimprove Right to have reasonable supports to Right to have reasonable supports to

assist in improvementassist in improvement Right to have a reasonable period of Right to have a reasonable period of

time to improvetime to improve Right to have a fair evaluatorRight to have a fair evaluator

Strategies For Progressive Strategies For Progressive DisciplineDiscipline

Identify weaknesses with specificityIdentify weaknesses with specificity Do not be overly concerned with Do not be overly concerned with

balance, but seem fairbalance, but seem fair Discuss process followed each step of Discuss process followed each step of

the way (review and mention old the way (review and mention old evaluations and disciplinary materials)evaluations and disciplinary materials)

Think about what you can offer to Think about what you can offer to support the teacher (even though it support the teacher (even though it will not make a real difference)will not make a real difference)

Strategies for Progressive Strategies for Progressive Discipline (continued)Discipline (continued)

Consider timing and sequenceConsider timing and sequence Poor evaluation (Spring)Poor evaluation (Spring) Intensive Plan (following year)Intensive Plan (following year) How long does the plan have to last?How long does the plan have to last? What is the magic language? What is the magic language?

(importance of skill set lacking, why it (importance of skill set lacking, why it must improve for educational purposes, must improve for educational purposes, negative impact of poor performance on negative impact of poor performance on education)education)

Evaluation (1)Evaluation (1) Documentation is critical. Must have Documentation is critical. Must have

consistency across evaluation, across time consistency across evaluation, across time (prior evaluations), across employee (prior evaluations), across employee populationpopulation

Example of evaluation. Evaluation issues: Example of evaluation. Evaluation issues: Numerical or narrative, deliver bad news Numerical or narrative, deliver bad news early and often, how to respond to early and often, how to respond to employee claims of impropriety? how long employee claims of impropriety? how long does it take to create just cause? Self does it take to create just cause? Self appraisal is helpfulappraisal is helpful

Evaluation (2)—Verbal Evaluation (2)—Verbal WarningWarning

Joe, you need to do a better job with you Joe, you need to do a better job with you lesson planslesson plans

Is this any discipline at all?Is this any discipline at all?

If so, how do you document?If so, how do you document?

Must it go into the teacher’s file?Must it go into the teacher’s file?

What if it does not go into file? Is it effective?What if it does not go into file? Is it effective?

Evaluation (3)Evaluation (3) Conducts teaching activities Conducts teaching activities

consistent with expectations: Joe consistent with expectations: Joe has a wonderful way with the has a wonderful way with the students. He seems very committed students. He seems very committed to them and I applaud him for that. to them and I applaud him for that. He must, however, work on his He must, however, work on his willingness to take direction. That willingness to take direction. That too is very important.too is very important.

Evaluation (4)Evaluation (4) Professional Development Plan: I Professional Development Plan: I

will be meeting with Joe once a week will be meeting with Joe once a week to discuss his progress. I will to discuss his progress. I will provide him with feedback on his provide him with feedback on his performance and guidance on how performance and guidance on how to improve.to improve.

Evaluation (5)Evaluation (5) Employee’s Response: Employee’s Response:

Administrator hates me and is lying Administrator hates me and is lying in the evaluation for purely personal in the evaluation for purely personal reasons.reasons.

How do you deal with that?How do you deal with that?

Evaluation (6)Evaluation (6) Joe refuses to sign the evaluation. Joe refuses to sign the evaluation.

Joe says he disagrees with it so he Joe says he disagrees with it so he does not need to signdoes not need to sign

How does Administrator respond?How does Administrator respond?

Evaluation (7)Evaluation (7) Explanation of expectation in Explanation of expectation in

quantifiable termsquantifiable terms Metrics for evaluation (cooperation as Metrics for evaluation (cooperation as

measured by input from others)measured by input from others) No rush to judgment/make paper trailNo rush to judgment/make paper trail Invitation to respond in writingInvitation to respond in writing Be aware of ADA, FEPA and VPFLA Be aware of ADA, FEPA and VPFLA

issues if raised (I can’t concentrate issues if raised (I can’t concentrate because I am deeply depressed)because I am deeply depressed)

Evaluation (8)Evaluation (8) Gets better in criticized areas and gets worse in other Gets better in criticized areas and gets worse in other

areasareas

What do you do?What do you do?

Magic language: Our concern is your competence as Magic language: Our concern is your competence as a teacher. We will be pleased to see improvement in a teacher. We will be pleased to see improvement in the identified areas of weakness. However, if you fail the identified areas of weakness. However, if you fail to meet our expectations for competence in other to meet our expectations for competence in other areas while improving in those we have identified as areas while improving in those we have identified as needing improvement such that you are still not needing improvement such that you are still not meeting our expectation for overall performance, you meeting our expectation for overall performance, you will be disciplined, up to and including termination. will be disciplined, up to and including termination.