Hire smart and set the employee up to succeed from day one.
Never skip asking for and checking references. When you speak to
references, ask open-ended questions about the employee’s work quantity and quality; how the employee gets along with coworkers, customers, and superiors; and whether the employee shows good judgment in prioritizing work and addressing unexpected problems.
Ask for examples of specific assignments the employee has completed on his or her current job. Ask how the employee handled each one. Ask if the person would rehire the employee if given the opportunity. This question always seems to elicit the most honest response.
If the reference tells you that they only give dates of employment, ask if your obtaining the employee’s consent would permit a more open discussion. And if not, ask the employee for additional references.
If the employee gave you samples of his or her work, verify with the employee's reference that the employee prepared those products on his or her own.
When you ask for references, you should also ask the employee for consent to review his or her personnel files. Most departments have a
form |
form - Text Only (RTF)for this purpose. Make an appointment to review the OPF and take a member of your HR office to assist you in interpreting the transaction coding in the employee’s history.
If the employee’s work history is mostly in the private sector, ask your HR office to help you devise a consent form that will cover private employment as well.
“On-Boarding” means welcoming and orienting your new employee to your division and department. The time and effort you put into the "onboarding" process can pay off in increased employee morale and productivity. Your HR office will probably have a checklist for you to review with new employees. Here are some points generally covered with a new hire:
Review any Unit-Wide Expectations Memoranda. Many departments encourage supervisors to give a general
expectations |
expectations - Text Only (RTF)memo to the supervisor’s entire unit. These memos outline basic work rules regarding work schedules, calling in and requesting leave time, reporting whereabouts and other department-wide or unit-wide rules. If you have provided this type of memorandum to the employees in your unit, make sure your new employee receives a copy as well.
Ask about the employee’s needs and work style as well. For example, you could ask, “What do you feel you already know? How can I help you get started? What kind of programs/processes did you use on your last job? Is there training you think you will need?
Walk the employee around the work site; introduce them to coworkers; if a coworker can help with something especially well, tell the employee about that person. Example: “If you need to put together a contract, talk to Samantha here—she’s great at that.” Make sure the employee is comfortable with the physical plant in general and his/her work station.
No matter how busy you are, make yourself available to talk and answer questions in the employee's first few days. Don’t wait for the employee to come to you; visit the employee’s work station and ask how things are going. And remember, on boarding is an interactive process that requires you to communicate with and support your new employees. Do not hand a new employee the department manual and a link to the department website and expect them to simply orient themselves.
Probation Reports:
Your HR office can tell you what the probationary period will be for the job and when reports are due. Tell the employee about probation reports, show the employee the form you will use, and calendar meeting dates to discuss the probation reports for about one week before the reports are due. If the employee has problems during the probationary period, this is a red flag. Provide plenty of feedback, training and document the feedback.
Annual Evaluations:
Departments vary on when the required yearly performance review is completed. Some departments expect you to evaluate the employee on the employee’s anniversary date. Other departments do all of the evaluations at the same time department wide.
The form used for evaluations, the factors considered, and other rules may vary as well. Your HR office is the best source of information about the process.
Whatever it is, a thorough supervisor’s file makes annual evaluations much easier because you have specific examples ready when you complete your evaluations.
Corrective Phase:
Correcting Performance Problems:
You’ve hired the best person for the job and you’ve done everything you can to explain the job clearly. You have made yourself available and offered training and support, but unfortunately your employee’s performance is still below the acceptable level. It’s time to implement the Corrective Phase.
In the Corrective Phase, you explain to the employee exactly how she or he is not meeting job expectations and what the employee needs to do to bring his or her performance up to an acceptable level. An excellent tool for conveying this explanation is the "Work Improvement Plan." You point out concrete examples of unacceptable job performance and explain specifically how the employee’s actions fell short of your expectations. You identify precise actions the employee can take and training or additional guidance the employee may need. Either the employee’s performance improves or, with buy-in from your supervisor and the help of your HR office, further action will be taken.
You must provide a meaningful opportunity for the employee to learn and improve. Generally it will work, and you will never have to reach the Formal Adverse Action Phase. That in itself is a victory. However, if the employee continues to make the same mistakes and you have to move into the Formal Adverse Action Phase, your good faith efforts to correct the problem will show your compliance with the state’s progressive discipline policy.
A critical element of the Corrective Phase is giving feedback and documenting employee performance. This gives the employee fair and clear notice about how to improve and creates a record that the employee received notice, training and ample opportunity to improve. The next sections discuss the right way to give feedback and document your efforts to help your employees improve.
Giving Feedback on Employee Performance:
Most people are comfortable giving positive feedback but less so with giving critical feedback, even when the goal is improving performance on the job. Giving constructive feedback is a skill that good supervisors must first learn and then practice.
Here are some basic tips:
Explain how the employee’s performance is affecting coworkers and the organization in general. If an employee’s failures are causing a problem for coworkers, say so. If the employee is a big help, say so.
Deal with problems as soon as possible, as they arise. If you wait until the next evaluation, it is less effective and may seem unfair. Worse, delay may cause you to miss important deadlines, such as, the end of a probationary period.
No matter how uncomfortable you feel, these issues matter and you need to handle the conversation seriously. You set the tone; keep it professional and stick to the facts. Avoid jokes, sarcasm, interrupting, being overly dramatic or exaggerating the problem.
As a final step, ask the employee if they understand your point and agree with the changes you are asking them to make. Engaging the employee in the solution is a great way to gain their buy-in. Document their suggestions and try to find common ground. If the employee is not willing to acknowledge the problem or agree to solutions, note that as well.
Do not ask the employee or guess at what is motivating the poor performance. For example, it is not appropriate to say, “I know things are tough at home but . . .” or “I know you’ve been sick for a while now, but . . . .” Getting personal will get you off track, and can result in legal problems for you and your department if you overstep the supervisor’s role. If the employee does bring up a personal problem, you may need to refer the employee to other resources within your department.
What’s the Point of Talking about Improving Work Performance?
Nobody enjoys talking about performance problems but supervisors have to do it because:
It works: Most performance problems are resolved by reviewing what is expected of the employee, talking over what went wrong in those instances where the expectation is not met, and deciding on a new course of action for the future.
It’s fair: not just fair to the employee with the problem; it is fair to the whole unit and department. Other employees will notice and respect the fact that when a performance problem comes up, you give the employee a chance to improve. This observation can foster trust and patience if an employee’s failures are causing extra work for his or her coworkers.
Before You Have a Counseling Meeting:
Make sure your supervisor and HR staff members are aware of the problem and support your plan for addressing it. You need to discuss with your own supervisor your plan for corrective action: the problem and the change you are asking the employee to make. You also need to discuss with your supervisor the next steps if the employee fails to improve as expected.
Check the applicable MOU about any special procedures or rights the employee has when being counseled on a performance problem.
Does this employee have a “Right to Representation” in a counseling meeting? Talk to your HR or LR staff to make sure you understand the employee's rights before the meeting.
Is the employee classified as a peace officer or a firefighter, EMT or paramedic? Special rules apply. Again, consult with your HR or LR staff.
Prepare an outline of what you want to say. Be specific, stick to the facts, and include:
A review of the performance expectations for the job; have available copies of any documents you have shared with the employee about those expectations, like duty statements, or emails about assignments.
Specifically identify the performance problem, the gap between what is expected and what this employee is doing.
Explain the impact on the group because of the employee’s performance. For example, is the unit missing deadlines? Have others had to work overtime to make up for the employee’s poor performance?
Identify the specific things you want the employee to do in the future to eliminate that performance gap, and what you can do to support the change with training, mentoring, or other resources. Be ready to tell the employee the solution to the problem.
If you think training might help the employee, talk to your department’s training officer about whether the employee’s deficiencies might be corrected through training. Identify any classes that could be effective for the employee’s problem areas. For example, if the employee has difficulty writing clearly, check into writing classes. If the employee has already been to training and the problem persists, you don’t have to repeat it, but document that you completed training options as part of the Corrective Phase.
Logistics and Attitude: Set Up the Counseling Meeting to Succeed:
You will need:
Scheduling a Meeting with the Employee and the Right to Representation:
If you tell an employee you want to meet to discuss their performance, he may ask to bring a union representative to the meeting. Check with your HR office and review the employee’s
MOU with your LR office in order to learn about the employee’s right to representation and how to handle the request.
As a very general rule of thumb, if the meeting is likely to solicit information that might result in discipline, the meeting might be considered an “investigatory interview, and the employee may be entitled to have a representative attend the meeting. On the other hand, giving day to day assignments or feedback to an employee in a routine meeting, does not trigger a right to representation. Special rules apply to some job classifications, especially peace officers, firefighters, Emergency Medical Technicians, and paramedics. So again, always consult with your HR staff and/or the LR office to make sure you understand any MOU guidelines that apply to that employee’s rights.
Where is the line between investigatory and routine meetings? That depends on the facts and your department’s practices. Do not try to figure this out on your own; ask for help.
Having the Conversation:
Review the performance expectations you have established for the job. Point out where the employee’s performance deviates from the expectations. Tell the employee what he or she needs to do to meet the standard and explain the support you will provide.
Remember, your goal is to reach an understanding with the employee about how to correct the performance gap. Focus on the specific problem: what happened, when, where, who was affected by the problem. Then talk about what you need the employee to do in the future.
Avoid joking or trying to “break” the tension; it’s a tense situation, and the best way to handle these types of conversations is to be clear, focused, and fair.
Stay calm. If the employee gets defensive, angry or criticizes you, don’t get distracted (e.g., “You never liked me”). If the employee makes a legitimate point, say you appreciate it and will consider it.
The following are examples of discussions with an employee about performance problems, offered to get you thinking about how you might want to conduct the conversation.
What if the Employee Brings Up a Personal Problem?
Throughout this guide, we advise you not to ask the employee if they are having a personal or medical problem, but instead to focus on the employee's actual performance. As a supervisor, when you inquire into an employee’s health or personal life, even with the best of intentions, you can find yourself accused of inappropriate conduct.
For example, after an employee advises you that he will need a medical leave for chemotherapy, you might ask a series of questions intended to be supportive, such as whether anyone in his family had cancer or how long the treatment will last. These are all well intended questions but these types of questions might later cause that employee to accuse you of violating his or her leave rights or other laws protecting against discrimination and the employee's privacy.
But even where you don’t raise it, an employee who is in the Corrective Phase may bring up a personal or medical problem as a way of explaining performance problems. What should you do? Tell the employee you hear them, but you need to get back to them and schedule a follow-up meeting. Then check with your HR office.
Most departments have a staff member who is up-to-date on the various laws relating to medical and personal leave issues. Generally, you will find that you can:
Offer EAP – EAP stands for the
Employee Assistance Program. It is a counseling program offered as a benefit to all state employees. One of the positives about offering EAP to an employee is it keeps you out of the employee’s personal problems so you can focus on work performance issues. (Remember, you cannot put information regarding EAP referrals or referrals for other types of medical assessments in your supervisor’s file; again, the HR and LR offices can help you determine how to keep your records).
Sometimes an employee can take some form of paid or unpaid
leave to deal with health or personal problems, such as a substance abuse problem. But again, this is not a decision any supervisor makes alone. These issues should be handled consistently department-wide and your HR staff will need to work with you to identify the options and how to discuss leave with the employee.
Following Up:
You should document the discussion and any conclusions you reached. This documentation is for your records and is not generally given to the employee since it is just your record of what you said to the employee. In the next section we provide detailed guidance on how to document both feedback and corrective action. For some job classifications, the
MOU determines how you keep the record, and the requirements you must meet before you can put a record in your supervisor’s file. The MOUs also cover whether you should give a copy to the employee. So always review the MOU and discuss it with your LR office to make sure your documentation meets the rules.
Documenting the Feedback You Give:
Whenever you conclude a performance discussion with an employee, whether it is just delivering a compliment or a private sit-down to discuss a problem, make a record about what was said and add the notes to your supervisor’s file right away.
Documentation does not need to be a burden. Emailing yourself |
Emailing yourself - Text Only (RTF)has the advantage of noting the time and date of your feedback. Whether hand written or electronic, the points to cover are simple:
Documenting Employee Performance:
You should keep records on each of the employees you supervise. Documentation is your record that you are doing the right thing as a supervisor. If you make it a habit, it won’t take that much time or effort, and it is an important aspect of your job as a supervisor. Why is documentation important?
It’s the law:
It’s fair:
Employees are judged on their job performance, and performance impacts training opportunities, promotions, pay, and layoff, among other things. If you routinely keep notes about each employee’s performance as you go along, your job will be much easier when it’s time to write probation reports and performance evaluations.
If the employee's poor performance or misconduct merits a counseling memo or adverse action, your file will be evidence that supports your decision because it proves that you continuously provided timely, clear feedback and gave the employee a chance to improve.
It’s your job:
Departments rely on supervisors to assist every employee to be efficient, productive, and satisfied. If you fail to maintain documentation on all of the employees you supervise, you aren’t completing a critical component of your own job and it could affect how you are evaluated.
Bottom line – You cannot supervise effectively if you don’t document the job expectations along with the employee’s strengths, weaknesses, successes and failures.
The Supervisor’s File:
The supervisor’s file (referred to by some as a “drop file”) is the record that you keep on the employee’s work and it stays with you even when the employee moves on to another job. The supervisor’s file is an invaluable tool for completing reports, giving recognition and references, figuring out a training budget and reminding yourself of points to cover in probation reports or performance evaluations.
The supervisor’s file is also your record that you have followed the rules and performed your duties as a supervisor properly. For example, if your employee tells you that he believes that a coworker is harassing him, you have a duty to forward that information to the Equal Employment Opportunity (EEO) Officer in your department. You should keep a copy of your email or
memo referring the matter to the EEO Officer |
memo referring the matter to the EEO Officer - Text Only (RTF), along with a copy of your documentation reflecting that you
advised |
advised - Text Only (RTF)the employee about his right to file a complaint with the department’s EEO Officer. Your supervisor’s file now includes documentation that you took prompt and appropriate action to ensure that the complaint was addressed by the appropriate authorities.
The supervisor’s file is different from the employee’s Official Personnel File (OPF). The OPF is a comprehensive record of the employee’s transactional history as a state employee. It is maintained by the HR office and follows the employee if the employee transfers to another department.
A few other points about the supervisor’s file:
Your supervisor’s file is NOT confidential - the employee or his/her representative can see it upon request. Keep your documentation thorough, professional, and fair. Don’t include anything that you wouldn’t feel comfortable having the employee read or have used as evidence in a hearing.
Examples of things to include:
Examples of things you do not need to include in a supervisor’s file:
As you go through the Corrective Phase, document every step. Again, unless the MOU provides otherwise, email yourself after every discussion, or hand write a simple note and drop it in your supervisor’s file. And, again, discuss your options and how to approach the problem with your HR staff and your supervisor, especially if you have addressed this or a similar problem with this employee before.
Counseling Memos/Letters of Correction:
Progressive discipline is the overarching process that starts with corrective action and includes formal discipline. Progressive discipline requires that when you first address an employee’s performance deficiencies, you start with a modest correction, like verbal counseling, or an informal email or memorandum documenting your conversation with the employee and the employee's agreement to improve. If there is no improvement, the actions you take are progressively more formal and serious, from counseling memos to a formal adverse action.
A formal adverse action is the final phase of progressive discipline in which the actions taken will have a negative, often financial, impact on the employee’s job status. Adverse actions are discussed at greater length in the final section of this guidebook entitled: Formal Adverse Action Phase. An “adverse action” is a term of art that refers to the legal process the state employer follows to impose formal discipline on an employee and includes a penalty such as a formal letter of reprimand, a pay cut, a suspension, demotion or termination. Every supervisor needs a basic understanding of how adverse actions happen, and what to expect from the process.
Evidence of the fact that you engaged in progressive discipline is particularly important when you file a formal adverse action. If the employee appeals the adverse action to the State Personnel Board, in reviewing whether your selected penalty is appropriate, the SPB will consider whether your department followed progressive discipline. The SPB may reduce the penalty if the record does not reflect the department took progressive discipline that afforded the employee the opportunity to correct the poor performance.
At the same time, progressive discipline does not have to go on forever. Put in practical terms, if simple verbal counseling with the employee doesn’t result in the desired improvement, the next step in progressive discipline is a counseling memorandum (counseling memo), sometimes referred to as a Letter of Correction. A counseling memo is drafted and given to the employee with the guidance of your HR office because the memo must conform to several technical requirements to qualify as progressive discipline. The counseling memo must include a description of the problem, a summary of any prior attempts to correct the problem, how you expect the employee to correct the problem and what the consequences will be for similar failures in the future. And if the counseling memo doesn’t bring about the desired performance improvement, you can move on to formal adverse action.
To qualify as progressive discipline which can be utilized to support the penalty in an adverse action, a counseling memo must include an advisory referred to as a Bazemore warning. This warning consists of a scripted advisory that notifies the employee of the possibility of formal adverse action for the incidents covered in the counseling memo as well as new conduct if similar poor performance occurs in the future.
The warning arose out of the
Bazemore SPB decision and its progeny that established the requirement and proscribed very specific language.
The
Bazemore |
Bazemore - Text Only (RTF) warning is a critical part of the counseling memo. Depending on department policy, the counseling memo may be retained in the OPF and becomes part of the employee’s official personnel record for a specific period of time. The amount of time that a counseling memo may be retained in an OPF will vary depending on factors including the applicable MOU and the department’s procedures.
It should be noted that if the employee problem is misconduct rather than poor performance, progressive discipline may not be necessary. Sometimes employees can be terminated for a single act of extreme misconduct.
Adverse actions in general and the requirement of progressive discipline in certain instances are discussed in more detail in the supervisor’s role in the "Formal Adverse Action Phase” of this Guide. Again, check with your HR office to discuss how and whether progressive discipline applies to this employee’s particular problem.
Special Rules for Peace Officers and Firefighters:
Some positions in state service are classified as “peace officer” positions, and the discipline process for these employees is governed by special rules. If you supervise any of these “public safety officers,” you probably already know about POBR – the “Public Safety Officers Procedural Bill of Rights Act” beginning at Government Code 3300.
State service also includes classifications that are designated as Firefighters, EMTs and Paramedics. These classifications also have special procedures under the Firefighters Procedural Bill of Rights Act, known as FPBR, beginning at Government Code Sections 3250. (All of these classifications are referred to as 'firefighters' pursuant to this law.)
POBR and FPBR establish unique rights whenever a peace officer or firefighter is investigated or interrogated. In general, POBR and FPBR limit when performance discussions can take place; how many supervisors can be present; the amount of time and form of the notice to be given to the employee, as well as representation rights.
If a peace officer is being investigated for possible criminal misconduct and the same misconduct is the subject of a personnel or administrative investigation, the considerations are even more complicated and your HR staff and perhaps legal staff will advise you on how to pursue corrective action without violating the applicable rules.
Bottom line – don’t assume you know POBR or FPBR. Discuss the issue with your supervisor, and LR and HR staff to explain your corrective work improvement plan so they can determine whether POBR or FPBR will be triggered and ensure your plan complies with these statutes whenever you are planning to conduct a corrective counseling session with a peace officer or a firefighter.
Denial of Merit Salary Adjustments:
Employees are eligible for a Merit Salary Adjustment (MSA) (usually a 5% raise) until their salary has reached the maximum step of the salary range. Be advised that an MSA will go into effect for an employee unless you take affirmative action to block it, and that this automatic MSA can make it difficult to take subsequent corrective action with an employee. MSA’s are automatically applied to most employees unless you, the supervisor, take action to stop the MSA from going into effect. If you have an employee with a performance problem that has not improved with ongoing corrective feedback, you need to carefully review whether permitting the MSA is appropriate.
If you allow an MSA to go into effect for an employee against whom you later take adverse action during the same performance period, the employee will counter the adverse action by pointing out that his or her performance was satisfactory enough to merit an MSA . In other words, receiving an MSA will be used as evidence that you were satisfied with the employee’s performance at the time.
If you are in the process of counseling an employee and you are notified that the employee is due for an MSA, talk over your options with your HR staff immediately because you generally have a very limited amount of time to stop the MSA from going into effect. The applicable MOU is the source of information on how and when
MSAs |
MSAs - Text Only (RTF)can be denied. For excluded employees, the causes for denial and procedure rules are in the CalHR/SPB rules (Title 2 of the California Code of Regulations). This is another subject area where the correct approach will depend on the facts of the individual case and so your best course of action is to check with your HR office for advice and guidance.
Employees denied an MSA can file a grievance under their department’s internal procedures and then file an appeal with CalHR. (See Title 2 Section 599.684.)
The Supervisor’s Role in Adverse Actions and Other Hearings:
“Adverse Action” is the name of the legal process state departments follow in order to reprimand, suspend, demote, or terminate a permanent employee. Every supervisor needs a basic understanding of how adverse actions happen, and what to expect from the process.
There are other types of proceedings that can be utilized to remove an employee from state service, too, including terminations for medical reasons, and a procedure known as a “non-punitive” action when an employee loses one of the qualifications for the job. For example, a peace officer employee who loses his or her right to carry a weapon through some legal action cannot continue in a peace officer classification.
All of these procedures carry a right to appeal to the SPB, as do Rejections during Probation. This section touches briefly on what to expect in these proceedings and provides links to additional resources.
Your department’s HR office, often working with legal staff, takes the lead in writing up the required documents and managing these procedures because it is the “appointing authority” or department that is authorized to change an employee’s position. Your HR or legal staff will tell you how you can help.
Whatever the type of proceeding, the supervisor is often called as a witness, and your supervisor’s file will provide critical documentation of why the action was necessary and appropriate.
Why are Adverse Actions Complicated?
Civil Service laws and rules permit the state employer to discipline and terminate employees with performance problems, but they also establish detailed procedures the State must follow to implement discipline. There are a variety of reasons for these procedures:
A permanent position in state service is a “property right” and under state and federal constitutional law, a person cannot be deprived of a property right without due process of law. Due process requires the appointing authority to provide notice and an opportunity for a hearing in addition to other legal rights.
Government Code section 19572 establishes
24 separate and distinct grounds for taking adverse action, and each one has its own legal definition that the appointing authority has the duty to prove applies to the facts of a particular case. In the “Notice of Adverse Action” your department will write a description of what the employee did and list which of the grounds for adverse action apply.
The Statute of Limitations for adverse actions is generally three years, meaning that problems older than that generally cannot be included in the action as a legal cause for discipline. However, for some classifications, the period is shorter, and sometimes older occurrences can be relevant when justifying the penalty.
If an employee appeals the adverse action, the employee is entitled to a hearing before an Administrative Law Judge (ALJ) at SPB. These administrative hearings follow procedures very similar to those used in a court of law: parties are often represented by lawyers, witnesses provide testimony under oath, and the ALJ adheres to a set of formal rules for receiving evidence and reaching a decision.
During the hearing, the employer (your department) will have the “burden of proof.” This means the department will have to prove by a preponderance (more than 50%) of the evidence that the employee’s conduct meets the definition of one of the 24 legal reasons for discipline. If the employee’s explanation is just as likely true as the department’s, the department will lose.
Your department will also offer evidence to demonstrate that the penalty chosen is appropriate for the violation. The possible penalties are dismissal, suspension, demotion, reduction in salary, and formal reprimand. Where applicable, your department will offer evidence of prior progressive discipline and how the employee responded to the opportunity to correct the problem. Sometimes even if the SPB finds that the conduct occurred, the SPB may impose a lesser penalty if the ALJ or the Board thinks the department failed to engage in progressive discipline.
Definitions of Common Adverse Action Terms:
To fully understand the adverse action process you need to be familiar with the following basic terms:
Administrative Law Judge or “ALJ” is the hearing officer who presides over the SPB hearing. ALJs are real judges just like the ones in the courts, and they are governed by the same code of conduct, meaning they must be impartial, thorough, studious, and professional. During the hearing the ALJ will: swear in witnesses; listen to testimony; rule on objections to questions or the introduction of evidence; ask his or her own questions; set the schedule for the hearing and otherwise direct the lawyers on how to proceed; and organize and manage the exhibits presented by the parties. After the hearing, the ALJ will draft a “Proposed Decision,” which will be reviewed by the full, five member board of SPB.
Burden of Proof is the standard the employer must meet to establish that the employee’s behavior meets the definition of a legal cause for adverse action. The employer must prove its case by a preponderance of the evidence, meaning the ALJ must find it more likely than not that the department’s proof of the facts of the case is correct. The department will also offer proof that the penalty chosen is appropriate to the problem.
Causes for Adverse Action, or Grounds for Adverse Action refers to the 24 reasons to take action found in
Government Code Section 19572. Each of the causes for adverse action has its own legal definition, and each requires the department to prove certain facts. For example, “Insubordination” may sound the same as “Willful Disobedience” but they have distinct definitions that require slightly different proof.
Nexus means connection, and it is an element of what the employer must prove in cases where the employee’s misconduct took place off-duty. The employer must demonstrate that there is a nexus between the off-duty behavior and the employee’s ability to do his or her job. For example, drunk driving may be job related for a Peace Officer but not for an Office Technician.
Penalty is the change in the employee’s status that the employer has made with the adverse action. For example, if the department is moving someone from one classification to a lower classification because she or he is unable to perform all of the job duties at the higher position, the penalty is demotion. If the employee appeals the demotion, the department will have to prove that it is an appropriate penalty for the performance problem.
Progressive discipline refers to the state policy enforced by the SPB that requires that performance problems must first be addressed in a manner that provides the employee notice of the problem and an opportunity to improve, and requires a department to start with less serious penalties such as a counseling memo before taking formal adverse action.
Skelly Hearing is the name of the hearing the employee can ask for before the adverse action becomes effective to ensure no mistakes have been made by the department in taking the action. This hearing is a short, more informal due process-review of the department’s case and the employee’s defense. It is called a Skelly Hearing because the requirement was established through a court case entitled
Skelly v .SPB.
Steps of an Adverse Action:
This is a very general overview of the steps in an adverse action. It is designed to give you an understanding of the process. Again, every case is different, so ask questions about what to expect in your department.
1. Fact Gathering:
Adverse actions are based on facts, so the first step is to learn and analyze the facts to determine whether there is factual basis to support an adverse action. A department taking an adverse action will need to be able to describe what happened; who the witnesses were; when it happened; where it happened; and whether it was an isolated event or part of a continuing pattern.
As the direct supervisor, your supervisor’s file is often the single best source of the facts upon which the adverse action will be based. The corrective actions you have implemented previously will demonstrate that the department engaged in appropriate progressive discipline.
Depending on the issue involved, and more commonly with misconduct, fact gathering may be necessary and can be completed either informally by the supervisor or more formally by a trained investigator. In most departments, if the employee engaged in serious misconduct, the fact gathering is performed by someone other than the direct supervisor. Many departments have procedures and experienced personnel to direct how a particular case is developed. Formal investigations may be conducted by an employee in your department, an employee from another department, a member of the California Highway Patrol, an investigator from CalHR, or even an attorney with a private law firm. The investigation is always intended to establish the facts while protecting the rights of the employee and witnesses.
2. Writing up the Legal Document, Notice of Adverse Action:
The fact gathering will be used to draft the Notice of Adverse Action. A Notice of Adverse Action must include information that is sufficiently detailed such that the employee can prepare a defense to the charges if he or she decides to appeal. The Notice will include:
A “Statement of Reasons” that plainly and thoroughly states the facts on which the department is basing the action. These are the facts that were established through the investigation or other informal fact gathering. If the employee appeals the adverse action to the SPB, the department will have to prove the facts by a preponderance of the evidence. The facts should meet the definition of the misconduct being charged.
Facts that support the penalty that the department is imposing. The Skelly case established not just the requirement for a Skelly hearing, but also described the factors the SPB will use to review a penalty. Depending on the facts, the department may also need to demonstrate that Progressive Discipline was followed when disciplining this employee.
Other legal requirements such as a notice of the right to a Skelly hearing, the right to appeal, the right to review documents, and the right to representation.
When the Notice of Adverse Action is served on the employee, it will have all of the supporting documents attached, including the documentation you have kept in your supervisor’s file describing your performance discussions with the employee. If the employee has violated policies, copies of the policies may be included as well.
3. Service of the Notice on the Employee and Skelly Hearing:
There are precise rules that dictate how the Notice of Adverse Action must be given to, or “served,” on the employee. Your personnel office is responsible for ensuring that this process is implemented correctly. The employee must be provided at least five working days before the adverse action is considered "effective." This means that the penalty will not go into effect for five working days.
During those five days, or later if the parties agree, the employee is entitled to have a “Skelly Hearing” in front of an impartial manager at a higher level than the employee. In a skelly hearing, the employee is afforded the opportunity to explain why the action is mistaken. Generally the "Skelly Officer" who presides over this due process hearing is a manager who works for your department, but sometimes will come from another state department. In the Notice of Adverse Action, the Skelly Hearing is often referred to as the “Right to Respond to Appointing Power.”
The adverse action “becomes effective,” meaning the penalty is imposed, on the effective date identified in the action regardless of whether the employee requests a Skelly hearing. Once the penalty goes into effect, it continues unless the employee settles with the department or the employee appeals and the SPB changes the level of penalty.
4. Employee Files a Formal Appeal:
The Employee has 30 calendar days from the effective date of the adverse action to make an appeal to the SPB. Once the SPB receives the appeal, the formal hearing process begins. There may be “discovery” prior to the hearing itself when the employee can ask the department to produce records or provide the opportunity to talk to possible witnesses.
For more information about the hearing process and requirements, refer to the SPB's Appeals Resource Guide.
5. Settlement Conference:
The SPB encourages the parties to settle by reaching a compromise. The Pros and Cons of settlement will vary with each case.
In a Settlement Conference, an ALJ (not the one who will ultimately hear the appeal) will work with the parties to see if the parties can agree to a resolution that will avoid the need for a hearing. The ALJ will generally listen to both sides, point out the weaknesses in their respective cases, and encourage settlement. But no one is required to settle, and a settlement cannot be imposed without agreement by both sides. Settlements often involve leaving the adverse action "on record" but reducing the penalty or deleting certain charges.
6. Formal Hearing:
Generally, a designated department representative other than the department's lawyer (or non-lawyer advocate), will sit through the hearing to assist the department's lawyer. Often the supervisor fills that role because the supervisor is the best source of knowledge about the employee and what happened, and therefore best able to help when the department's lawyer has a question about the testimony or other evidence.
Witnesses are generally "excluded" from the hearing to protect their testimony from the influence, conscious or unconscious, of hearing others talk about the same incident. However, the hearings are otherwise open to anyone who is not a witness, and sometimes the employee will bring family or other supporters.
The ALJ will direct the hearing after going "on the record" meaning setting up the recording for the hearing. The department presents its case first. As the immediate supervisor, you may be called as a witness to testify to facts about the employee's conduct and prior counseling or corrective feedback you have given the employee. Witnesses are sworn in, just like in court, and asked questions about events and documents. After the department's representative asks you questions about the employee's performance or misconduct (direct examination), you will most likely be asked questions by the lawyer/representative for the employee as well (cross examination). The ALJ may also direct questions to the witnesses while they are on the stand testifying.
The lawyers will raise objections from time to time and the ALJ will rule on the objections. If you are a witness when an objection is made, you will be asked not to answer the question until the objection is resolved by the Judge. Sometimes the question will be stricken and you won't be required to answer it at all.
The appellant (the employee) puts on his or her case after the department presents its evidence. However, since the department has the burden of proof, technically the employee does not have to offer any evidence or new facts. For example, the employee may just offer a character witness rather than trying to refute the department's witnesses with witnesses of his or her own.
7. The Decision
After the hearing concludes, the ALJ will write a “Proposed Decision.” The format is similar to the Notice of Adverse Action. The Proposed Decision will give dates and times of the hearing, and in a “Statement of Facts” set out the facts which the ALJ has found to be more likely true than not. In this way, conflicts in the testimony are resolved. Then based on those facts, the ALJ will discuss the penalty and find it is either supported by the evidence and upheld it, or will modify it to some lesser penalty, or not sustain the penalty at all, meaning the department has not met its burden of proof and the adverse action will be nullified.
The Proposed Decision is not a public document but is transmitted to the members of the SPB for review. The SPB describes what happens next on its website:
The Proposed Decision may sustain the action completely, modify the penalty, revoke the action, and/or restore the employee to the position and/or employment list. The proposed decision will be reviewed by the five-member Board at one of its bi-monthly meetings. The Board may adopt the proposed decision, modify (lower) the penalty, reject the decision, and/or remand the decision to the ALJ for further findings. If the Board rejects the proposed decision, the parties will be given an opportunity to purchase the transcript, file written argument, and present oral argument to the Board at a public meeting. The Board will then issue its own decision in the case.
8. After the SPB Issues Its Decision:
Either the department or the employee can appeal to a California Superior Court by filing a “Writ of Administrative Mandamus.” The Superior Court will not hold a new hearing, but instead will review the record of the SPB hearing and review the exhibits to make sure the evidence supports the final decision. Generally SPB decisions are upheld when appealed to Superior Court, but not in every case.
Other Hearings That Are Under SPB Jurisdiction:
Other kinds of actions can also result in an appeal hearing or a formal legal proceeding. As with adverse actions, these are not procedures that a supervisor initiates on his or her own. Always consult with your own supervisor and with the HR staff in your department to figure out how to handle a problem.
1. Medical Terminations |
Medical Terminations - Text Only (RTF):
Sometimes an employee’s health will change in a way that prevents the employee from handling all of the job duties. Most often these cases result from an injury to the employee that may impair mobility or strength required for the job. Medical actions are very complex and often involve overarching issues related to accommodating employees with disabilities. Generally the past performance of the employee is not an issue; the issue is whether the employee can currently perform the job. The Supervisor’s role is more limited in these actions and HR will take the lead.
2. Non-Punitive Terminations |
Non-Punitive Terminations - Text Only (RTF):
In these actions, the employee has lost one of the minimum qualifications for the job, and has to be removed until that qualification is restored. For example, a nurse may lose his license to practice nursing because of an admitted substance abuse problem. Even if that problem has not affected his work, he cannot continue to be a nurse for the State because he has lost one of the basic requirements for the classification; a nursing license. When the license is restored the position may be as well. Again, HR will take the lead on these actions.
3. Rejections During Probation |
Rejections During Probation - Text Only (RTF):
Probationary periods pass quickly and the documentation retained in your supervisor’s file, reflecting your performance discussions with the employee is the key evidence for rejecting an employee during probation.
The law provides that an employee can be rejected during probation for reasons relating to their qualifications; for the “good of the service” and for failure to demonstrate “merit, efficiency, fitness, and moral responsibility.” Your HR office can help you figure out if the problems you are experiencing with the employee meet the legal definitions of these terms.
The probationary period is considered to be the last step of the civil service examination process and employees are not granted permanent status in their classification until they pass probation. As a result, unlike adverse actions, in appeals from rejection on probation, the burden of proof is on the employee.
Bottom line – keep an eye on the clock during the probationary period. Use it to assess the employee’s ability to perform the job duties. Discuss any concerns with the employee as the issues come up and document your discussions. Document, document, document. If you are not confident that the employee can perform the job, discuss options with your HR staff as soon as you can. The HR staff will write up the legal documentation if a Rejection is in order.
