Employee & Labor Relations assists supervisors, managers, and department heads with consultation on performance management best practices in responding to performance concerns, attendance problems, misconduct issues, or workplace conflicts. We advise on appropriate corrective action and progressive discipline and provide guidance on involuntary separation actions, e.g., termination, layoff, or medical separation.
Performance, Attendance or Conduct Concerns
On occasion, a manager or supervisor may be confronted with a difficult employee situation or concern. Most of the concerns can usually be organized into one or more of the following areas: performance, attendance, or conduct. The most important advice we can give is not to tolerate, minimize, or ignore these concerns. Prompt, appropriate, and consistent follow-up to any of these issues is always the best bet for improving a difficult situation with an employee's performance, attendance or conduct.
Examples of Performance Concerns
- Poor quality of work
- Job takes more time and effort than usual
- Quality of work is less than acceptable
- Deadlines are missed
- Mistakes are made due to inattention or poor judgment
- Complaints from customers/students/faculty/community
Examples of Attendance Concerns
- Excessive use of sick leave
- Frequent Monday and/or Friday absences
- Repeated absences that follow a particular pattern
- Excessive tardiness, in the morning and/or after lunch
- Peculiar and/or improbable excuses for absences
- Multiple instances of unauthorized leave
Examples of Conduct Concerns
- Argumentative, difficult behavior, easily angered
- Complaints from peers regarding poor interpersonal relationships
- Drastic changes in physical appearance
- Smell of alcohol and/or impaired physical ability
- Verbal fights with co-workers/customers/others
- Inappropriate or intimidating physical contact
- Threats or actual physical violence towards people or property
Note: Any threats of imminent violence or actual violence should be immediately reported to campus police.
Taking Corrective Action
All career employees have an expectation of continued employment and are entitled to due process. Specifically, employees need to be clearly advised of the problem or concern that needs to be corrected and be given a reasonable opportunity to improve before any further action is taken. When action is taken, an employee must be given notice and an opportunity to respond. Corrective action is not considered “discipline” and is primarily focused on improving the employee’s performance, attendance, or conduct. Your goal is to guide the employee to correct performance, attendance, or behavior not to punish the employee. As a general rule, your action should be just enough to get the employee's attention. Corrective action involves verbal or written communications from you to the employee that are designed to assist the employee in correcting the “problem” or concern, e.g., performance, attendance, or conduct. Non-disciplinary corrective action typically includes informal discussions, verbal warnings, and letters of concern or expectation.
Communication is the First Step
One of the first and most important steps in effective corrective action is communication. Talk privately with the employee about your concerns. Be specific in describing the unacceptable performance or behavior. Use factual examples not generalizations, e.g., “you were 20 minutes late on Tuesday and three days last week” vs. “you’re always late.” Clearly state your expectation for improved performance or behavior, e.g., “I expect you to be here at 8am, your scheduled start-time.” In some situations you may feel frustrated or angry when an employee repeatedly fails to perform satisfactorily or follow the rules. Keep in mind, however, that most employees come to work wanting to do a good job. Some will require more specific and frequent feedback than others to understand what that means in your work site and in the jobs under your supervision. Frequency of feedback will largely depend on what you observe in the employee's behavior and performance and on the cycles of the work (e.g., tardiness can be corrected immediately, but it may take days or weeks to complete a particular project or task for your review).
Seek Advice
If the unacceptable performance, attendance, and/or conduct persists, contact ELR for advice on next steps. Depending on the circumstances, a letter of concern or expectation may be given to the employee to communicate your expectations and the need for immediate and sustained improvement. A letter of concern or expectation is not considered discipline. Supervisors are encouraged, but not required, to consult with ELR before issuing a letter of concern or expectation.
Progressive Discipline Steps
If there is no improvement or if repeat occurrences follow corrective action measures, you may have to take progressively more serious actions. The purpose of disciplinary action is to turn performance, attendance, and conduct problems around by continuing to identify problems, causes, and solutions. If you can accomplish this in a positive and constructive way, you will send a message that you are not out to punish but to help the employee become a fully productive member of your work unit. Consultation with ELR is required prior to initiation of any formal discipline.
There are three possible forms of progressive discipline: letter of warning, suspension, or termination. When deciding what disciplinary action to take, keep in mind that discipline is supposed to be constructive. While your overall goal is still improvement, the consequences for the employee’s failure to improve are much more serious. Prior to issuing any disciplinary action, you are still required to first review your concerns with the employee and allow them an opportunity to respond before taking action. In most cases, a letter of warning is the first appropriate step in progressive discipline.
Skelly Hearing
The California Supreme Court ruled in 1975, in a case referred to as THE SKELLY DECISION, that all public employees, including the University of California, who are permanent (career) have a property interest in their job. Therefore, the University must provide certain procedural safeguards before it can deprive an employee of the property interest in his or her job. The Skelly decision requires that the University provide the following pre-removal safeguards:
Notice of the proposed action:
- The reasons for the disciplinary action;
- A copy of the materials upon which the action is based;
- A statement of the employee’s right to respond to the disciplining authority.
When the University plans to impose disciplinary action involving termination of a career employee, suspensions of 6 days or more or an unpaid leave of 10 days or more, under Skelly an employee has the right to respond before the discipline is imposed. The proposed action will identify the Skelly reviewer. The response may involve a meeting or written response. The response is the employee’s opportunity to present informal evidence to dissuade the University from imposing the proposed disciplinary action.
Investigatory Leave
Investigatory leave is a type of leave available to management when circumstances warrant removing an employee from the work site during the course of the University’s investigation of allegations against the employee. An employee may be placed on an investigatory leave with or without prior written notice. Investigatory leave is not a type of corrective action. Specific provisions regarding investigatory leave vary slightly between University personnel policies and various union contracts, but all require some form of written notice to the employee. Please immediately contact ELR immediately when placing an employee on investigatory leave to ensure compliance with applicable policy or union contract. Consultation with ELR is required before or immediately after placing an employee on investigatory leave.
Just Cause Standards
"Just Cause" is the guiding principle that the University follows as a public employer whenever we engage in some form of corrective action or progressive discipline for many of our employees. Management may be expected to have "just cause" when disciplining an employee. The following factors may be considered when evaluating appropriate corrective action or discipline. Please note these are factors to consider but may not be required to establish just cause.
- Was the employee adequately forewarned that the particular behavior would result in discipline? The warning could have been given either orally or in writing or in the form of a general work rule. An exception to this may be made in instances of misconduct so severe that the employee is reasonably expected to know that it would be grounds for discipline. (Examples of severe misconduct include, but are not limited to, dishonesty, theft or misappropriation of University property, fighting on the job, insubordination, or acts endangering others.)
- Was the violated work rule reasonably related to orderly, efficient, and safe operations?
- Did management make a fair and objective investigation of the facts prior to administering any discipline? Is there substantial, persuasive evidence that the employee has committed the alleged acts? The standard of proof will vary depending on the type of charge involved, however, the evidence cannot consist of mere rumors or unsupported accusations.
- Are management’s rules, orders, and disciplinary action applied in a consistent and non-discriminatory manner? If management has been inconsistent in the past and now wishes to start enforcing the rule, employees must be adequately forewarned. If the rule is intended to apply to all those within a department, division, or other work unit, it must then be consistently applied to all affected employees.
- Is the discipline reasonably related to the seriousness of the offense and the employee’s past work record?
- Early attention to any problem can reduce the potential of a major conflict developing. If the discipline is to be effective, it must be administered in such a way as to sustain a challenge if a grievance or complaint is filed in response.
Managing Probationary Employees
As part of the selection and hiring process, most career-level employees in Professional Support Staff (PSS) positions are considered probationary employees for their first six months of university employment. This six month timeframe allows management time to assess whether the new employee's skills, performance, and reliability fit their position and merit continuation of university employment (the length of the probationary period should have been communicated to the employee during the hiring process by the Employment recruiter). Note: Management level employees in Manager Senior Professional (MSP) titles do not have a probationary period.
Management is encouraged to make full use of the probationary period to assess a new employees fit for the particular position as well as overall University employment. Management should meet with probationary employee to clearly explain expectations for performance, attendance, and conduct as well as provide feedback on a frequent and regular basis throughout the probationary period.
After employees complete their probation period, they become career employees and do not have another probationary period unless a break in University employment occurs.
Performance Evaluations During Probationary Period
In most cases, probationary employees should receive at least one written performance evaluation during the probationary period. Please consult the applicable University Policy or union contract that applies to the employee’s job title for more information about these requirements.
Completion of Probationary Period
At the conclusion of the probationary period, the employee should receive written notification of the successful completion of the probationary period using the Probationary Period Report Form (PDF). The employee should receive a copy of the completed Probationary Period Report form. The original form should be filed in the employee’s departmental personnel file (Human Resources does not retain a copy centrally). Typically, new employees should also receive a written performance review at the conclusion of the probationary period.
Extension of Probationary Period
In some case, management may wish to extend an employee’s probation by an additional three months. Probationary employees must be advised, in writing, of the reasons for the extension before the probationary period ends. ELR must review and approve the decision to extend probation before any information is communicated to the employee. Management is encouraged to contact ELR as soon as extension of an employee’s probationary period is contemplated but no later than two weeks before the scheduled end of the probationary period.
Probationary Release
Probationary employees are at-will and may be released with or without cause during probation. Employees being released must receive written notification pursuant to the requirements of the applicable University policy or collective bargaining agreement. ELR must review and approve the decision to release an employee before any information is communicated to the employee. Management is encouraged to contact ELR as soon as release of a probationary employee period is contemplated.
Employee Right to Representation
When meetings are convened by management for the purpose of investigating facts which could reasonably lead to disciplinary action, an employee is entitled to have a representative present at the meeting if they request one. All employees are entitled to representation in this type of circumstance. Routine meetings called to discuss performance issues, including evaluations or work instructions, do not give rise to employee representational rights. Note: Management has no obligation to ask an employee if they would like a representative present at a meeting.
The point at which representational rights apply may not be clear. The issue may arise during a meeting in which management does not contemplate disciplinary action, but the employee's reasonable belief, based on the course of the meeting, is that discipline may be an outcome. In these circumstances, an employee may request the presence of a representative before continuing with the meeting. ELR advises management to address the representational issue before proceeding; consequently, the meeting should be postponed until the representational issue can be resolved.
If an employee requests a representative, please contact ELR before taking any further action. ELR will coordinate and be present at meetings with employees and their representatives. Managers should also contact ELR whenever an employee representative directly contacts them to request a meeting or shows up unexpectedly and asks to participate in a meeting with management and the employee.