Supervisor Bootcamp: Drill Down on Coaching, Counseling and Appropriate Documentation to Encourage Employee Improvement P R E S E N T E D B Y : S u z a n n e B o g d a n, C h a i r, E d u c a t i o n P r a c t i c e G r o u p F i s h e r & P h i l l i p s L L P October 8, 2015
Case Study Sharon is a new teacher at the school. She is very knowledgeable and has expertise in integrating technology into her lessons. However, she is impatient at times and has a shrill voice. Students frequently tell their parents that Sharon yells during class and does not respond to their questions. By October, several parents have also complained about how Sharon communicates with them and their children. How would you address this issue?
Case Study The Director decided to talk to Sharon about the concerns expressed by the students and parents. Sharon was very open to the communication and said she would try harder to ensure that her tone of voice was appropriate. The meeting ended well. Should the Director do anything else, given the positive outcome? What are the pros/cons of additional action?
Case Study The complaints continued. By late December, three more parents had come forward. Winter break was around the corner, so the Director decided to wait until January to discuss the concerns with Sharon. January was really busy. In mid- February, the Director finally met with Sharon to address the issue again and to talk about the fact that Sharon was probably not going to be rehired for next year. The Director never got to the rehire part of the conversation, however, because when she told Sharon that more complaints came in, Sharon began to cry and disclosed that she has a hearing problem which results in her talking very loudly at times. How do you handle this new information? What are the risks of non-renewal given the situation?
What Are the Laws You and the School Should Be Concerned About? Title VII (prohibits discrimination/harassment on the basis of race, sex, nationality, color, and religion) Section 1981 (race discrimination/harassment)
What Are the Laws You and the School Should Be Concerned About? Age Discrimination in Employment Act (age 40 and over discrimination/harassment) Americans with Disabilities Act (disability discrimination/harassment)
What Are the Laws You and the School Should Be Concerned About? Family and Medical Leave Act (personal leave rights) Common law claims (breach of/interference with contract, negligence, invasion of privacy)
These Laws Have Broad Application These laws apply to the hiring, evaluation, counseling, coaching, interacting, and termination processes. If the school is challenged under one of these laws, you need to show that an adverse employment action was based on legitimate business reasons. Good documentation is important for that reason.
Good Documentation Principles and Communications Processes
Remember Key Principles About Writings Not all documents are created equally Which would you rather have to rely upon? Why? Napkin Note to file Email to HR Email to employee Employee Observation Form Formal counseling/evaluation document signed by employee
Remember Key Principles About Writings Employees don t hear you until you write it down (in a meaningful way). Good documentation removes the surprise * when you later have to separate. *surprises should be money or turkeys at Thanksgiving
Different Forms/Processes for Documentation There are three primary forms of documentation that schools use: Coaching and Counseling Forms Observation Forms Evaluation Forms
Coaching/Counseling Forms and Processes Coaching/Counseling is a soft method to adjust behavior/performance. Coaching/Counseling should occur throughout the full evaluation year as issues need to be addressed or when patterns develop. Coaching/Counseling should be documented using good documentation principles (to be discussed).
Observation Forms Observation forms/processes are not very useful in defending employee claims. The observation visit is usually scheduled and planned with the teacher. The teacher plans for the best class ever, the kids are all prepared to participate well, the teacher is on his/her best behavior, and the world is perfect. Not surprisingly, the observation is almost always positive.
Observation Forms Observation forms also do not reflect the full year performance it s a 45-minute snapshot of one lesson. The forms rarely include critical comments or comparative comments. The forms do not address citizenship, attendance, or compliance with policies. The key: Don t rely on an observation form as your only source of documentation.
Evaluations The evaluation is typically a formalized review process used every six months or once per year. High-achieving employees may be reviewed every other year. Customize your evaluation form to frame the essential elements of the position. Make sure the evaluation is honest and includes those areas of challenge earlier in the period that the employee has recently overcome. Don t let one incident taint the entire evaluation either positively or negatively.
Evaluations Good evaluation forms include all aspects that should be measured and/or addressed: Performance Compliance with School policies and procedures Management skills (if supervision is an aspect of the employee s essential functions) Standard aspects of attendance, timeliness, interaction, innovation, communication, parental relations Goals for next year
Provide Timely Counseling/Coaching and Feedback
Regular Communications About Performance You can never communicate too much about performance: Caveat: If the first time you begin communicating about (negative) performance is only after the employee has accused you of harassment, discrimination, or other illegal activity, your communications may be deemed retaliatory.
Regular Communications About Performance Don t wait until the end-of-the-year evaluation process to assess and provide feedback to your employees. Meet frequently and document each communication. Review the employee s file to determine those areas that you need to discuss for expectations early in the year. Be objective and determine where you may have fallen short on evaluating last year. Meet with the employee within the first or second month of the new evaluation year (September/October) to discuss your expectations for this performance year.
Regular Communications About Performance Meet again in December or early January to give feedback on how the employee is performing Assess again in the March timeframe to determine the likelihood of rehire and expectations for remainder of the year. If the employee is not going to be renewed, he/she should not be surprised if you have done your job correctly.
Always Find Something Positive to Say Every person within the institution needs to feel that you recognize his/her worth and contributions. Regardless of the evaluation format, make sure that you take the time to let people know the things they do well and that you appreciate them. Tell them when their ideas or suggestions have been put to work in a positive way.
Ensure Your Comments About Performance Are Meaningful You need to ensure that your communications and all forms of writings about performance are specific, measurable, and meaningful. Example of vague comments: Sami is not enthusiastic in working with employees to address payroll questions. What is she doing or not doing? Is it her tone of voice? Is she responsive to employee's questions and concerns? Does she fail to follow up to ensure the issue is resolved? Give specific details and examples.
Examples Not Good: She is the best secretary I ever had. Good: She gets along well with faculty and staff; she anticipates needs before asked; she is accurate in document preparation; and she delegates work well when I am unavailable.
Examples Not Good: I can always count on her. Good: She was in charge of three major projects this year, all of which were successful due to her attention to detail, personal investment in the outcome, and ability to anticipate problems.
Outline Specific Steps, Issues, or Goals that You Want the Employee to Meet Think about what performance or interaction deficiencies you want to see addressed and by what timeframe. Write out your specific, measurable goals. i.e., Have all student grades posted within one week after the close of the semester. Tutor students twice a week, providing written guidelines. Respond to all parent emails and/or calls within 24 hours.
Outline Specific Steps, Issues, or Goals that You Want the Employee to Meet State your expectations on behavior. You must ensure that you always use a positive and supportive tone of voice. You need to mingle with and engage alumni at fundraising events.
Outline Specific Steps, Issues, or Goals that You Want the Employee to Meet Outline any resources the employee should consult. Observe teacher A as she teaches Philosophy. Watch the school s webinar on positive parent relations and meet with me next week to discuss five takeaways.
Outline Specific Steps, Issues, or Goals that You Want the Employee to Meet Set a timeframe for when you will assess progress. State the consequences for the employee s failure to meet the expectations. Your contract may not be renewed for the next year if we do not see adequate progress in the areas outlined in this memorandum.
Ensure All Your Communications Are Appropriate Never use language that could infer bias (inappropriate jokes, innuendo, etc.). Be careful in how you describe people, even if meant to be positive. ( Mr. Williams has a grandfatherly demeanor. ) When criticizing attendance, be careful with job protected leave.
Performance Meetings Ensure that the performance discussion is conducted in a private place. Consider having a witness involved in the process if you believe the evaluation may be problematic. Be assertive, yet tactful. An employee will not improve his/her performance until convinced of the reality and degree of shortcomings and the need to change. Get the employee involved on how the employee can meet the expectations; steps to be taken; timeframes.
Documenting Discipline Record the date, time, and detailed information. Documents facts not conclusions. Be objective. Be simple and specific.
Documenting Discipline Do not create smoking guns Bad example: Stan sexually harassed an employee. Better: Stan violated the no harassment policy. Record exact quotes and voice labels Bad example: She used profanity and left. Better: She said, This is bull---- and I am leaving.
Documenting Discipline Include reference to applicable rules or performance standards. I discussed with Sally the handbook policy that she must call in two hours before her shift and speak to her supervisor. Document any ultimatum given. I told John that if he continues to be tardy he will lose his job.
Documenting Discipline Have a witness present. Allow employees to write comments and sign the counseling memo. If the employee refuses, document the refusal, along with any comments, and have the witness verify.
Case Study It is March 2015. The IT Director wants to let John, an employee in the IT Department, go. Documentation in John s file reflects: Three notes to file from 2005, 2006, and 2008. Each talk about John having attendance problems and being unreliable. An email to John s supervisor in November 2014 from a teacher saying that she called John on Monday for a computer problem and that John did not respond until Wednesday. When he did come by, he spent a lot of time at her computer and then said he could not fix the problem.
Case Study (continued) An email from John s supervisor to John in December 2014 indicating that John has not been reliable and that he needs to focus more efforts in helping staff with computer needs. A verbal comment a week ago from a teacher saying John had not yet responded to her request for new software. What are your thoughts on non-renewal or termination? What else would you like to see?
IF THERE IS A NEED TO SEPARATE
Introductory/Probationary Period 90-day look at new employee Judges, juries, administrative agencies understand that you sometimes make an error in hiring Can terminate with less documentation But you must still have a reason!
Introductory/Probationary Period Do we still need to have documentation if we terminate in the introductory period? Absolutely. If challenged, you need to prove that the employee had unsatisfactory performance.
Non-Renewal vs. Termination Is a non-renewal at the end of the school year a termination? Can someone sue the school for non-renewal of their contract when you are simply not re-hiring them after the end of their one-year contract?
Non-Renewal vs. Termination What are the differences in a non-renewal and termination? Timing (gone now vs. gone at the end of the year) Most schools use non-renewal for poor performance of teaching staff desiring to keep them for the balance of the year to maintain classroom continuity.
Non-Renewal vs. Termination Managing the employment relationship after notice of the non-renewal can be very difficult. You must set appropriate expectations and be prepared to terminate if the individual becomes disruptive. With immediate termination, if you have a contract, you must ensure that it is consistent with terms of the contract (or you must pay out the contract).
What About Employment at Will? Since all states but Montana are employment at will states, why can t you just let someone go at the end of the contract?
Questions to Ask Before Termination/Non-Renewal Be fair in your assessment of the individual s shortcomings. Are you sure you have appropriately counseled the individual toward improvement? What proof do you have? What are the writings that substantiate your efforts? Has the individual made some effort toward improvement? Are you certain you have given the employee enough time?
Questions to Ask Before Termination/Non-Renewal Will separation of employment take the individual by surprise? In this situation, is it best to provide a final warning or last chance to improve, or is immediate termination necessary? If immediate, why? If the individual is under contract, does the contract require any steps?
Questions to Ask Before Termination/Non-Renewal Are there other supervisors that have also been involved in assessing the individual s employment? How do they feel about the individual s efforts toward improvement? Have you seen the other supervisors documentation?
Questions to Ask Before Termination/Non-Renewal Are there extenuating factors to consider? Did the individual recently have a death in the family or other traumatic circumstance? Did the individual recently complain about an issue that might give pause (i.e., sexual harassment) or have a workers compensation injury? How have you handled other, similar situations? You want to be consistent.
Handling the Non-renewal or Separation Once you have determined that the employee should be separated, you need to ensure that the communication to the employee is handled appropriately. Have a witness lined up to assist in the process. Your witness should be prepared to listen closely and take good notes of everything that is said in the meeting.
Handling the Separation Prior to the meeting, put a few bullet points together of what you want to communicate to the employee regarding the reason for the separation. If it is a non-renewal (they are being told now that they will be allowed to work through the rest of the year), outline appropriate expectations and what the school is willing to do: Professionalism through the rest of the school year If they continue to perform to the best of their ability, this will help you be able to provide an appropriate reference. You will give some time off for interviews, with proper notice so you can provide coverage.
Handling the Separation If the employee is being terminated immediately, be prepared to get all remaining property (or tell the employee what must be turned in and by when). Be prepared to discuss how the school will respond to requests for references. Be prepared to answer the employee s question about pay for unused vacation (if any), sick time, health care continuation, and other similar issues.
Handling the Separation Be prepared to respond to the employee s question on unemployment eligibility. Do not discuss the reasons for the separation with other employees or third parties. Since each situation is unique, you need to determine the appropriate communication for each situation, recognizing that employment issues should remain confidential.
Final Questions?
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