For this discussion topic, you will consider both sides of the debate discussed in the articles posted under the link “Progressive Discipline: Arguments Against” (posted in the Performance Management & Appraisal module). In this article, legal consultant Jathan Janove argues that progressive discipline policies, which are intended to address employees’ poor performance, create more problems than they solve or prevent.
Your task is to:
Read the articles (there are 2 in the link), along with the summary paragraphs preceding the articles.
Evaluate both Jathan Janove’s arguments against progressive discipline & potential objections to his arguments. In doing so, you are encouraged to rely on any personal experience with progressive discipline you have had, or the experiences that others (e.g., family or friends) have had with progressive discipline.
After considering arguments in favor & against Janove’s position that progressive discipline should be “fired” (rejected & replaced with another policy), come to a conclusion about Janove’s position. You may strongly support Janove’s position, strongly oppose Janove’s position, or support a more nuanced position (e.g., that progressive discipline is useful or necessary in some employment settings but is counterproductive in others). If you support the nuanced position, you should list & discuss the conditions under which progressive discipline is useful/necessary versus not useful/necessary.
You are encouraged to respond to other students’ opinions (e.g., by expressing agreement or disagreement), along with reasons for your opinions.
The maximum score on this assignment is 100. I will evaluate your responses on the basis of:
(a) how systematic & thorough your analysis of Janove’s arguments & evidence is;
(b) your use of relevant experience (first- or second-hand) in your arguments;
(c) the extent to which your overall conclusion follows from your analysis & arguments;
(d) whether you respond to other students’ opinions, & the quality of your responses.
To score in the 90-100 range requires a thorough & systematic analysis of both sides of the issue, with well-supported conclusions & relevant & responsive replies to other students.
Fire Progressive Discipline
| By Jathan Janove, J.D. July 24, 2019 |
SHRM
Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.
In my former career as an employment attorney, I never found value in the conventional approach to employee discipline, which typically involves lengthy and detailed written warnings and tiresome legalese.
Designed to help employers prevent or defend claims, this approach often promotes procrastination in dealing with problematic employees and provides grist for the litigation mill, with plaintiffs’ attorneys happily pouncing on inaccuracies and inconsistencies.
There’s a Better Way
In a previous column, I introduced the Same Day Summary, or SDS. This could be an effective alternative to conventional progressive discipline.
In the past, I managed the office of a large international law firm. I received reports that one of our associate attorneys, “Sam,” was behaving badly. Partners complained that Sam was unreliable, hard to get a hold of and missed deadlines. In addition, staffers complained that he would become angry, demeaning and intimidating, especially when on deadline.
I could have used the firm’s standard disciplinary forms to address Sam’s behavior. Instead, I scheduled a meeting with him and followed up with an SDS.
Here’s what I wrote after our meeting:
To: Sam
From: Jathan
Date: Today
Re: Our meeting this morning
Sam, here’s a summary of key takeaways from today’s meeting. Please let me know if you think I left anything out or misstated anything.
We discussed the complaints from partners about your turning work in late and being hard to contact. We also discussed complaints from staff, who felt you can be intimidating and disrespectful, especially when there’s a last-minute rush to meet deadlines.
I shared with you that as office managing partner, I consider three characteristics to be essential for an attorney to remain employed here: produce first-rate work, be zealously responsive to internal and external clients, and treat everyone at all times with civility and respect.
As I explained, you’re clearly capable of first-rate work. It’s the other two characteristics that are problematic.
I appreciate your response that you will concentrate on getting assignments done earlier, make sure people can contact you when needed and, when under stress, not take it out on staff.
As I said, I hope that you make major strides in those two areas so your relationship with this firm continues.
I will be checking in with partners and staff and will let you know what progress has been made.
If you have questions or would like to discuss this further, please let me know.
Jathan
In what ways does the approach I took differ from the conventional progressive disciplinary model?
- It’s solution-oriented, not punitive or judgmental.
- It’s honest, written in the manager’s own voice.
- There are no surprises; the document simply summarizes our conversation.
- It’s easy for the manager to compose.
- It’s a document that can fend off or withstand a claim. However, its purpose is not to document. It’s to communicate.
Although it lacks the traditional bells and whistles of a written warning and doesn’t include the employee’s signature, an SDS decreases claim risk. Why? Because employees are more likely to feel they were treated fairly and with respect. The relationship is less likely to become hostile, even if it ends. Anger doesn’t rise to the level that it motivates an employee to seek an attorney.
Others Weigh In
I have been teaching, preaching about and using Same Day Summaries for more than 20 years. I reached out to employment attorneys for comment.
When used correctly, the SDS can help avoid litigation between the employee and organization, according to Brian McDermott, employment attorney with Jackson Lewis in Indianapolis. “The beauty of the SDS is the timely and constructive communication to the employee, which is nearly always good practice and policy. If litigation does occur, however, the SDS can and should be used to demonstrate the employee was treated fairly, consistently with other like situations and based on legitimate business reasons.”
Paul Buchanan, employment attorney at Buchanan Angeli Altschul & Sullivan in Portland, Ore., stated, “This approach has enormous benefits, both in preserving the quality of workplace relationships and in litigation. It’s in the manager’s authentic voice and makes sense in the context of the relationship with the employee.”
Buchanan explained that the SDS makes the manager’s perspective “sympathetic and helps demonstrate that management’s interests are legitimate and reasonable and not punitive or just ‘backside-covering.’ ” Such an approach is far more helpful in litigation defense “than bureaucratic, formal, more-punitive performance improvement plans.”
Lastly, Buchanan noted, “this type of communication is easier for managers to do, and so they are more likely to actually do it because it doesn’t feel false and disruptive of the relationship with the employee.”
Camille Olson, employment attorney with Seyfarth Shaw in Chicago, believes that constructive comments and forward-looking communications with employees about their performance are very useful. “I also agree that if those documents were regularly used for positive and constructive feedback, this would remove the taint of receiving such a document, as well as the adversarial nature of the communications generally.”
Dustin Dipo, director of people at 1-800 Contacts, cautioned, “At 1-800 Contacts, we’re great believers in the SDS. However, there are roadblocks to implementing it. Breaking a long-standing practice of progressive discipline takes time. It’s important to be patient if you want this change.
“Managers can get confused and fall into old ways of thinking. A few weeks back, I was asked, ‘So how many same day summaries do I give before it’s considered a final?’
“You constantly have to re-emphasize the SDS’s purpose: open communication and coaching to help change behavior.”
If you’re persuaded to replace conventional progressive discipline with SDSs, I’d love to learn about your experience.
You can also check out another one of my previous columns, where I make the modest proposal to ban the word “documentation.”
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to [email protected].
The Same Day Summary at Work
| By Jathan Janove, J.D. October 25, 2019 |
SHRM
In a previous column, I asserted that it’s time to end progressive disciplinary policies and practices. I urged that they be replaced by the Same Day Summary (SDS).
I have since received many comments from HR professionals about the SDS. Overall, they’ve been positive and encouraging. Several HR professionals expressed their own frustration at having to administer progressive discipline and their awareness of its abundant problems.
I’ve also been asked a number of questions. In this column, I address them.
Q: If we replace formal progressive disciplinary documentation with SDSs, won’t this make us vulnerable in employment litigation?
A: Not in my experience. If done properly, the SDS provides the documentation you need. As noted by Brian McDermott, a management lawyer at Jackson Lewis in Indiana, the law generally does not require progressive discipline. Rather, the employer generally must base its decisions on legitimate, nondiscriminatory reasons. He explained, “The SDS can help the employer meet its goals of providing the employee notice of the need to correct behavior or improve and documenting communications with an employee about the need to correct behavior or improve. And because juries often look at matters from a fairness perspective, the SDS can help an employer show it acted fairly toward an employee.”
Q: Is it in necessary to include in an SDS language such as “failure to improve may result in further disciplinary action up to and including termination of employment”?
A: No! I find that sentence repugnant. It’s negative. It’s adversarial. It’s dehumanizing. And it’s unnecessary.
To defend or ward off most wrongful-discharge claims, you need to show clear notice and opportunity to improve. If you’re at what would otherwise be called the “final warning” or “last chance” stage, explain to the employee directly and specifically what must change, by when, and what the result will be should the change not happen. Confirm your employee’s understanding verbally, then confirm this in your SDS: “As we discussed and as you said you understood, the following changes must occur in the next 30 days … As I said, we hope you’re able to make these changes and that you remain a member of our team. If not, however, your employment will end at that time.” Assuming you behave consistently with what you said and wrote, you’ll have a supporting document if needed.
Q: What if an employee regresses after receiving the SDS?
A: Confront the employee promptly, directly, specifically and respectfully. Point out the language in the SDS confirming what needed to happen, and contrast it with what has occurred. Focus on specific behaviors and facts to provide clear and unemotional feedback to the employee about how deliverables have not been met: “We discussed that you would provide this report every Wednesday, and three times this month, the report was not delivered until the following Monday.” This will help the employee see what needs to change and avoid the perception that he or she was targeted for some other reason.
This is often a good time to ask the employee whether he or she thinks the job is the right fit. “I’m concerned that this problem has again arisen. I need to be clear that it cannot continue. Either we need to find a way to fix this problem long term, or we need to recognize that the fit is not right and you need to transition from this position and potentially from our company. What do you think?”
This approach puts you on a path either to an intervention that works or to a respectful and dignified termination of employment. Just be sure to follow this conversation with an SDS, including what the employee said in response to your question.
Q: Can you have more than one SDS per employee?
A: Yes. The number depends on how many important discussions you have. For each discussion, there should be an SDS. It’s that simple.
Q: Should we have the employee sign the SDS?
A: No. In my experience, good communication and record-keeping practices greatly reduce the risk that an employee can credibly claim to have never received the SDS. Moreover, requiring a signature undermines the constructive, solution-oriented concept the SDS promotes. It also makes the SDS a higher-maintenance exercise with increased risk of error in application.
In my view, it’s enough that the employee receives the SDS and that it contains such language as “if you have further questions, or if I missed or misstated anything of importance, please let me know right away.” If you still feel the need for more documentation, make a contemporaneous note for your files of the date and time of the SDS discussion and who was present.
Q: Will the SDS reduce the number of involuntary terminations?
A: Yes. It’s not so much the SDS itself that reduces the number of such terminations as the behavioral guidance it provides for management and HR. The SDS encourages and supports prompt, direct, specific and interactive discussions with a problematic employee. It helps employees clearly understand when and how expectations are not being met and the impact of this failure. The SDS is solution-oriented rather than blame-oriented. Indeed, many employees will see the writing on the wall through these specifics and self-select out of the organization rather than be terminated.
Q: We’re a large employer and have followed formal, progressive disciplinary procedure for many years. How can we transition to the SDS?
A: First, I suggest you modify your written disciplinary policy if it’s inconsistent with the use of the SDS. Inform employees of this change so there are no surprises and they understand any new expectations.
Second, do a pilot project. Identify particular managers, departments or units where you can test the SDS on a smaller scale. This will give you a better sense of the level of training needed of management and HR, and it will identify any potential kinks or obstacles that need correction.
Colleen McManus, SHRM-SCP, an HR executive and consultant based in Arizona, suggests a pilot project using the SDS for what would be “lower” forms of discipline in your current procedure. “This will maintain the integrity of your progressive disciplinary procedure for the higher forms of discipline that are most subject to appeal, complaint or litigation,” she explained, “while letting you obtain feedback, buy-in and training needs from those using SDS during your pilot.”
Thereafter, with the benefit of lessons learned, you’ll be ready to scale the process companywide in a way that is most appropriate for your organization.
Please keep your questions coming to [email protected], and please share experiences you have. I’m encouraged by the overall positive reaction of HR professionals to the SDS and strongly believe it will help build trust, respect and appreciation of the HR function.
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