Did you share and document your attendance expectations with the employee? That is, was the employee forewarned of the disciplinary consequences for failure to maintain regular attendance – see Job Discussion link?

Is the discipline being issued in a timely manner? Disciplinary actions should be taken as promptly as possible after the offense has been committed. Regularly monitoring your employees’ attendance history (eRMS or Form 3972) is one way to insure discipline is issued timely.

Are your attendance expectations reasonable – corrective and not punitive?

Have you tried to work with the employee to improve his/her attendance? Ways to work with employees is through coaching (discussing/reminding of attendance expectations), reasonable settlements, and referral to the EAP. – see EAP link

Did you permit the employee to have his/her day in court – employee interview – see Investigatory Interview link? Employees have the right to know with reasonable detail why you consider their attendance to be unsatisfactory and to be given an opportunity to defend themselves before the discipline is initiated. Based on the employee’s response, you may find that the planned discipline is either inappropriate or premature.

If you fail or refuse to consider an employee’s explanation in making a decision to discipline, this would be considered a violation of that employee’s due process rights. It is important that you not have a closed mind, refusing to take into account valid excuses. You need to be open to a reasonable explanation.

Are attendance expectations consistently and equitably enforced? They must be applied fairly and without discrimination. What you do for one, you must do for another in the same situation – it is unwise and unfair to make exceptions.

Ask yourself – Is the severity of the discipline that I plan to issue in line with the discipline that I usually mete out to other employees with past records similar to this employee’s record? You need to be prepared to justify why a particular employee may have been issued a more severe discipline than another.

Is the discipline progressive – are you starting at the lowest, most lenient level and progressing to the highest – most severe level (i.e., LOW, 7- day suspension, etc.)? – see Article 16 link

The 510 – Administrative Action screen in eRMS should show all prior discipline steps that have been taken. When in doubt – check it out with Labor.

Did you check to make sure the discipline you plan to issue is appropriate by determining if the last discipline step had been reduced or removed by a former supervisor during a settlement? When in doubt – check it out with Labor.

If you were able to respond “yes” to steps 1 – 9, then prepare and submit a complete DAP package to Labor – see DAP Package link.

NOTE: It is important that you do not complete a DAP package prior to an employee’s interview. This premature action would suggest that you have reached a final decision before giving the employee his/her day in court.

Discipline

Article 16 – Discipline Procedures

(National Agreements)

Disciplinary measures for attendance generally should be imposed progressively, beginning with oral or written warnings, then progressing to 7-day and 14-day suspensions, and finally to removal. Avoid rushing into discipline without first “doing your homework” to insure you meet the just cause and proof requirements – see Discipline Checklist link.

It is important to be able to show that the steps listed below have been taken to correct attendance deficiencies in the order listed and that you only took more severe action when the lower discipline steps proved to be ineffective – see Collective Bargaining Agreements – Article 16 link.

· Job Discussions for minor offenses

· Letter of Warning.

· Suspensions of 14 Days or Less

· Suspensions of More than 14 Days or Discharge

Employee Discipline Records

NOTE: The records of a disciplinary action against an employee shall not be considered in any subsequent disciplinary action if there has been no disciplinary action initiated against the employee for a period of two years. (Exception: See Article 16.8, National Agreement for rural carriers).

Upon the employee's written request, a disciplinary notice or decision letter will be removed from the employee's official personnel folder after two years if there has been no disciplinary action initiated against the employee in that two-year period.

Expectations and Job Discussions

Expectations: Supervisors must not wait until an employee’s attendance is irregular to explain leave regulations and attendance expectations. The expectation that employees make every effort to avoid unscheduled absences should be discussed at regular intervals with those you supervise. General attendance requirements can be a topic for group discussions – such as during service talks or whenever a new employee is assigned to your area of responsibility.

Job Discussions: see Collective Bargaining Agreements – Article 16 link.

A job discussion is considered to be an informal action, which means it is not considered to be discipline and is, therefore, not grievable.

Whenever specific problems arise regarding an individual employee, the problems must be discussed in private with that employee and supervisor.

A job discussion should be given for all minor offenses as specified in #5 below.

Supervisors have a responsibility to encourage employees to correct their attendance before discipline is issued. A simple job discussion with the employee may be enough to correct the deficiency

The job discussion should a) identify the problem – be specific, cite examples;

b) explain what the employee needs to do to correct the problem; c) explain what the consequences will be if the problem is not corrected; and d) explain that the next discipline step will be progressive for any infraction (i.e., unsatisfactory attendance, failure to follow instructions, poor performance, etc.).

Make sure that you share all completed copies of Forms 3971 with the employee to show his/her leave history during the discussion. You may also attach the eRMS Employee Key Indicator Report. This report provides a detailed overview of the employee’s attendance history, within a specific date range, so that excessive unscheduled absences and signs of probable leave abuse can be easily identified. A copy of this report should be given to the employee at the beginning of the discussion. The supervisor should record on this Report the date of discussion and the employee’s comments; it should be kept in a locked file.

Continue to monitor the employee’s leave history to insure the discussion was effective. If the employee corrects the deficiency, you need to let the employee know that you appreciate the improvement.

It is advisable to make notes of your job discussion as the conversation will serve as proof that the employee had been made aware of his/her attendance responsibilities.

Notes must be kept in a locked file - no reference to a job discussion is to be placed in the eRMS database or the employee’s personnel file.

Discipline Action Proposals

(DAP)

Steps to Progressive Discipline

Last Chance Settlements – see Last Chance Settlements link

Steps to Progressive Discipline

Settlements

General Settlements

Terms to Avoid	Comments	Better Terms
Grievant must show improvement	What is improvement – is 19 days better than 20?	Must demonstrate satisfactory attendance (Allows the supervisor to determine what he/she considers to be satisfactory attendance).
Review in 6 months and remain for 1 year.	Why bother to review in 6 months if you have no written recourse should you find attendance has not improved.	Discipline will be removed on a specified date (i.e. 03/10/08) providing …. (State specifically when and under what conditions the discipline will be removed. Monitor regularly and keep the employee apprised – acceptable or not acceptable.)
Will remove all discipline	Only negotiate the case before you
Will remove if no further discipline of similar nature	Shouldn’t prior discipline remain for any type of future discipline?	Discipline will be removed on a specified date (i.e. 03/10/08) providing the employee receives no further discipline.

Note: Please contact a labor relations specialist to discuss or obtain the provisions.

Last Chance Settlements (LCS)

A last chance agreement serves as the “last chance opportunity” for the employee to save his/her career. To do so, the employee must:

establish and maintain a satisfactory record, which is a requirement of his/her position.

agree that future deficiencies will result in removal.

It is management’s responsibility to take appropriate action to control unscheduled absences by its employees – see Unscheduled Leave link. Any action that is taken needs to be consistent, equitable, and timely.

By taking the time to carefully read, understand and then apply the following information, the use of unscheduled leave in your unit should decline.

When is it time to issue discipline for unsatisfactory attendance? Listed below are examples of reasons that may warrant discipline:

When a review of an employee’s leave history indicates the employee is regularly using unscheduled leave at a rate equal to or greater than the rate it is earned.
When the employee has established unscheduled leave patterns (i.e., leave taken in conjunction with: 1) scheduled days off, 2) holidays, 3) specific days of week, etc.).
When you are able to answer “yes” to the questions on the Discipline Checklist – see Discipline Checklist link.

Job Discussion – Article 16 – National Agreement – see Job Discussion link

A job discussion is the first and most important step to correcting unacceptable attendance. It is an opportunity to share your attendance expectations with the employee and to assure he/she understands the impact to the unit and the future consequences of poor attendance.

Restricted Sick Leave – ELM 513.39 – Please consult with a labor relations specialist prior to placing an employee on restricted sick leave (RSL). Placing an employee on RSL is not a precondition to require medical documentation (ELM 513.364) to support an unscheduled absence – see Documentation link.

Disciplinary Action Proposal (DAP) – see DAP link – When discipline is determined to be appropriate, review the Discipline Checklist before you complete a DAP package. You also may want to review some of the Reasons Discipline May Be Reversed link to avoid these common mistakes.

After meeting with the employee and his/her union representative – see Investigatory Interview link – it is important to check the DAP package to insure it is complete before submitting it to a labor relations specialist. Incomplete DAP packages is one of the primary reasons discipline is delayed. (NOTE: Discipline letters are prepared by labor relations specialists).

Discipline – Article 16 – National Agreement – see Article 16 link - Disciplinary measures normally should be imposed progressively in the following order:

· Letter of Warning

· 7-day suspension

· 14-day suspension

· Removal

Last Chance Settlements – see Last Chance Settlements link

Last chance settlement (LCS) terms must be clear and unmistakable and need to incorporate certain performance requirements plus other specific language. The attached link offers guidance in selecting terms that will clearly and objectively convey your intent, and terms that should be avoided. It is also important that you consult with a labor relations specialist before any last chance settlement is entered into.

By taking the time to carefully read, understand and then apply the following information, the use of unscheduled leave in your unit should decline.

When is it time to issue discipline for unsatisfactory attendance? Listed below are examples of reasons that may warrant discipline:

When a review of an employee’s leave history indicates the employee is regularly using unscheduled leave at a rate equal to or greater than the rate it is earned.
When the employee has established unscheduled leave patterns (i.e., leave taken in conjunction with: 1) scheduled days off, 2) holidays, 3) specific days of week, etc.).
When you are able to answer “yes” to the questions on the Discipline Checklist – see Discipline Checklist link.

Job Discussion – Article 16 – National Agreement – see Job Discussion link

Discipline – Article 16 – National Agreement – see Article 16 link - Disciplinary measures normally should be imposed progressively in the following order:

· Letter of Warning

· 7-day suspension

· 14-day suspension

· Removal

Disciplinary actions should be taken as promptly as possible after the offense has been committed. When discipline is issued untimely, grievances and arbitration decisions are likely to be sustained.

One of the primary reasons discipline is not issued timely is because supervisors send incomplete DAP packages to labor relation specialists. Before labor relation specialists can develop discipline letters for supervisors, they check to make sure that all supporting documentation is included in the DAP package. A lot of valuable time is wasted when additional information has to be gathered.

One simple way to prevent such delays is to “check off” that the items listed below are accurately completed and have been included in the DAP package: - see DAP Form link.

A complete DAP package must include, but is not limited to:

1. Form 3972

2. Forms 3971 – completed as follows:

a. Type of absence box needs to be checked

b. Approval or disapproval boxes need to be checked

c. Supervisor needs to sign and date the form

d. Employee needs to sign the form or the written words “employee refused to sign” needs to be annotated.

e. Compare Forms 3971 to the entries reported on the 3972 or the Key Indicator Report to insure no 3971’s are missing and that the “leave type” entries agree.

f. “Finalized” FMLA leave – see footnote

3. Employee Key Indicator Report – if your office has implemented the Enterprise Resource Management System (eRMS).

Footnote: When a new FMLA condition is requested, supervisors are to check the box “Approved FMLA, Pending Documentation Noted on Reverse” and sign the form.

Once the FMLA is approved or denied, it is the responsibility of the supervisor to “finalize” the action. If approved, the box “Approved, FMLA” must be checked. If disapproved, the box “approved, not FMLA” must be checked. Also, one of the following boxes needs to be checked on the reverse of Form 3971, depending on the reason the FMLA request was denied:

1. Absence Not for a Covered Condition

2. Absence Not for a Covered Family Member

3. Requested Documentation Not Provided

A copy of the “finalized” slip should be given to the employee.

Form 3971s that are checked “Approved, FMLA pending…” should be maintained by the supervisor in a secure file until the Form has been “finalized”. Then the form can be sent to the Hawkeye District TACS Office for file retention.

MSPB Recommends that Agencies Provide More Information and Flexibility to Supervisors on Alternative Discipline

http://www.mspb.gov/sites/mspb/pages/MSPB%20Studies.aspx

Alternative discipline is an approach to addressing misconduct that enables supervisors to consider the nature of the offense, and the personality of the employee, when crafting a response that has the greatest potential to help the employee to avoid future misconduct. For example, under traditional discipline, Federal supervisors have the authority to suspend an employee without pay if the employee misbehaves— but what if the supervisor thinks another method may have a better chance of changing the employee’s behavior?

The U.S. Merit Systems Protection Board (MSPB) has just released a report, Alternative Discipline: Creative Solutions for Agencies to Address Misconduct, that looks at what agencies are doing in this area. One of the report’s major findings is that few agencies have a formal policy on alternative discipline, and many agencies do not provide formal training or guidance. This leaves supervisors and organizations to learn about alternative discipline on their own.

“Alternative discipline is a great tool for supervisors to consider if they have an employee who is engaging in misconduct,” says MSPB Chairman Neil A.G. McPhie. “It empowers proposing and deciding officials to work with the misbehaving employee in order to craft a solution that has the greatest potential to change that employee’s conduct. Traditional discipline should remain an option for management. If the supervisor and the employee can agree on a better approach, however, we encourage agencies to consider alternative discipline.”

The MSPB’s support for using alternative approaches to traditional discipline dates back to its early days after its formation following the Civil Service Reform Act of 1978. In a landmark 1981 case, Douglas v.
Veterans Administration, the Board held that one important factor for agencies to consider when determining the correct penalty is, “the adequacy and effectiveness of alternative sanctions to deter such conduct in the future.”

The MSPB report contains information on how different agencies are using— or not using—alternative discipline and includes a helpful section on important case law for parties to consider when drafting an alternative discipline agreement.