To Discipline...

To Discipline or Not?

Deciding Whether to Take Disciplinary Action

Analyze the Problem

Based on the initial information you know about the problem and with consultation with the Employee Relations Specialist in the Personnel Office, determine the nature of the problem, i.e., if the problem is conduct or performance-related (see the "Employee Problems" section for specific instructions on analyzing the employee problem). If the problem is a performance problem, see the "Poor Performance" section If the problem is conduct-related, continue with the instructions, below.

Investigate to Get the Facts

You are first required to conduct a reasonably full and fair investigation of the situation before deciding upon, or carrying out, disciplinary action. In most cases, the employee's first or second level supervisor will conduct the administrative investigation. However, in cases where there are allegations of waste, fraud, and abuse; a serious conflict-of-interest; or serious misconduct, you should speak to the Employee Relations Specialist in the Personnel Office to arrange for the case to be referred through appropriate channels to the Office of the Inspector General (IG) for formal investigation.

In conducting a "reasonably full and fair investigation," you should determine the answers to the following questions, at a minimum, in order to learn the facts of the case:

What actually happened?
When did it happen?
Where did it happen?
Who witnessed the event?
How did the event or situation occur?
Why did it happen?
Who was accountable for the incident?
In most cases, written documentation will be required. You, as supervisor or the witnesses to the event, at a minimum can write up the events that occurred, sign, and date them. This should be done as soon after the event as possible while the facts are fresh in witnesses’ minds. In some cases, for serious instances of misconduct or where possible criminal conduct has occurred, a formal investigation may need to be conducted where questions are asked of witnesses, and affidavits taken. The "Employee Problems" section provides guidance concerning documentation.

You should get the employee's side of the story. A third party reviewing the case will want to know whether the employee was given a chance to present his/her version of the events leading to the disciplinary action.

Representational Rights

With regard to unions, a bargaining unit employee is entitled to be represented by a union representative during an examination of the employee by an agency representative in connection with an investigation if:

the employee reasonably believes that the examination may result in disciplinary action against himself/herself, and
the employee requests representation. (Weingarten Rights).
If you are unsure whether the employees in your organization are in a bargaining unit call the Employee Relations Specialist in the Personnel Office. If so, you must be mindful to observe "representational rights" for these employees; for example, if you are interviewing an employee about his/her misconduct and the employee asks for union representation, stop the meeting for a reasonable period of time until he/she can obtain a union representative.

Know the Rules, Regulations, and Policies

Generally if there is no rule, regulation, policy, work procedure, office practice, or conduct standard that prohibits whatever the employee has done, discipline is not justified. The reason is that discipline is used to correct behavior that violates Government-wide conduct standards, DOIs, Service's or management's rules and requirements. If there is no rule or requirement, there is no basis to discipline an employee.

This does not mean that every possible violation by an employee must be covered by a written rule or regulation. Some actions are so obviously wrong that no written policy is necessary. For example, the Service does not have a rule against dumping garbage on a supervisor's desk. But such action by an employee could result in disciplinary action, even without a written policy against it, because it is so obviously wrong.

When employees first report to work, they are provided a minimum of one hour of official duty time to review the Standards of Ethical Conduct for Employees of the Executive Branch. Employees are expected to abide by these rules and regulations. If they do not, they can be disciplined.

Employees are also expected to carry out the announced policies and programs of the Department and to obey proper requests and directions of their supervisors. As the supervisor, you have the authority to establish standard operating procedures, office and work policies, and other conduct expectations. If your employee fails to follow your oral or written directions or requests, you can decide to discipline the employee for insubordination or for failure to follow supervisory directions or policies.

Check to See if the Rules have Been Communicated and Enforced Consistently

There are 2 other questions that you must consider when contemplating discipline:

Did the employee know about the rule or regulation or, if not, is the offense so obvious that he/she could be expected to know about it without being told?
Has this rule been consistently enforced in the past and, if not, were employees warned that it would be enforced before this incident?
One of the most frequent reasons disciplinary actions are overturned is because employees are able to show that they were never told of the rules, regulations, or office policies. In most cases, there has to be some evidence employees were told of a rule, or knew about it before discipline can be taken.

A rule can be communicated in any of several different ways including posting on bulletin boards, issuing all employee memoranda, explaining it during orientation sessions or staff meetings, discussing it in a one-on-one counseling session, etc.

If the employee can show that the rule has not been consistently enforced, regardless of whether it was communicated to employees, disciplinary action can be overturned. If the rule has NOT been enforced, the employee can reasonably claim that he/she did not think it was in effect any longer, or he/she would not have acted in the same way.

This does not mean a rule can never be applied if management has not been consistently enforcing it. But it does mean employees must be clearly warned that it will be enforced before imposing discipline on anyone for breaking it.

Making the Decision to Discipline or Not to Discipline

After you answer all the questions discussed above (i.e., Is there evidence that the employee did something? Is there a rule, policy, or regulation against doing what the employee did? Did the employee know about the rule? When other employees have broken the rule, has discipline been consistently applied?), you should be in a good position to make a decision on whether to administer discipline.