Alternative Discipline-Federal Agency Practices
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Extracted from Alternative Dispute Resolution A Resource Guide February 2003 |
In a case where traditional iscipline might call for a penalty of suspension without pay, under AD, the employee and the agency might agree that a letter in lieu of the suspension is appropriate. Typical features of such an agreement between the employee and agency are: (1) an accurate and full description of the employee's offense; (2) employee admission of wrongdoing; (3) employee promise to modify his or her behavior; (4) notation of the specific traditional disciplinary penalty and the specific alternative discipline; (5) acknowledgment that the agreement will be kept to support possible future disciplinary action based on new offenses and/or acknowledgment of the disposition of the agreement at the end of a specified reckoning period; (6) notification of the possible penalty for a subsequent offense; (7) usually a waiver of appeal and/or grievance rights; (8) a statement that the agreement was voluntarily entered into by the employee and the agency; and (9) signatures of the employee, the supervisor, and any representative. A key aspect of AD is that the employee has a stake in AD in that he or she is actively involved in determining how the workplace problem is resolved.
Benefits of AD include avoidance of the high costs of litigating appeals, grievances, or complaints that often follow traditional discipline--under AD, all issues are resolved at the time the action is taken. The agency retains the services of the employee instead of losing productivity because the employee is under suspension as may be the case under traditional discipline. If the employee is suspended, there may be replacement coverage expenses which might include overtime payments for other employees to do the work of the suspended employee. AD helps avoid lost time and productivity of supervisors, deciding officials, witnesses, and others who may be preparing for and attending hearings or other dispute resolution proceedings if traditional discipline is used. AD also reduces the negative impact on the relationship between a supervisor and a disciplined employee that can occur following traditional discipline. Finally, AD can be a tool to help cope with reductions in agency funding by keeping employees on the job and productive.
The following are summaries of agency AD programs. They are arranged in alphabetical order according to the name of the agency involved.
Agriculture
How the Alternative Discipline System Works
Alternative discipline (AD) may be offered to employees as an alternative to traditional discipline provided individual circumstances meet the agency's written policy criteria. AD may be initiated instead of the traditional disciplinary process or at any stage of the traditional process. Individual employees are not entitled to alternative discipline nor can the agency impose AD on its employees since participation is voluntary.
Background Objective
The alternative discipline program is an available option to help carry out the USDA policy that disciplinary action be limited to the minimum action necessary to correct employee misconduct and to maintain discipline. The agency strongly encourages the use of AD as an excellent tool for reducing administrative costs and burdens associated with traditional discipline. It also encourages managers and supervisors to take a more active role in managing their employees, and provides employees an opportunity to demonstrate accountability for their actions and subsequent rehabilitation for productive Government service.
Duration/Current Activity
The program has been in effect since March 10, 1993 and is used by all of the organizations with delegated authority within USDA. Organizations with AD authority include the agency's mission areas, the Chief Information Officer, the General Counsel, and the Inspector General.
Rules Governing the Activity
The agency's policy is provided in USDA Personnel Bulletin No. 751-3 (June 3, 1998) which superseded former Department Personnel Manual 751, Subchapter 4. The criteria for using alternative discipline are: (1) the misconduct justifies a penalty less than removal; (2) the employee admits to the misconduct, accepts responsibility for it, and agrees not to repeat the misconduct; (3) the agency determines the employee is a good candidate for alternative discipline and the alternative discipline acts as a deterrent to other employees; and (4) the employee agrees to waive any and all grievance, appeal, and/or EEO complaint rights with respect to the particular action. These rights are also waived if traditional discipline is imposed because the employee fails to satisfy the terms and conditions of the AD agreement. If the employee fails, the terms and conditions of the AD agreement, the employee is notified in writing that the agreement was violated and the traditional penalty, which is identified in the agreement, would be immediately imposed. AD agreements are signed by the employee, the employee's representative, and the supervisor or other management official and are maintained in the servicing human resources office, not in the OPF.
Air Force-Keesler Air Force Base
How the Alternative Discipline System Works
The system allows management and the employee who has committed an infraction to agree to an alternative form of corrective action in lieu of traditional discipline. This may include attendance at remedial classes, leave donation, community service, apologies, etc. It is intended to provide rapid resolution to problems, avoid the costs and lost time resulting from use of formal complaint systems, and contribute to a more positive resolution to problems from both management's and the employee's perspective. It is not used in situations where removal is warranted or where legally prescribed penalties apply to the violation.
Background/Objective
In March 1995, Headquarters Air Education and Training Command (AETC) developed and distributed a guide entitled, A Guide for Developing an Alternative Discipline Process (ADP). It was distributed to the 13 bases under the Command, with a request for a volunteer to do a formal test of the program. Keesler AFB MS volunteered to conduct the test and, after negotiations with its three local unions, published program guidance in mid-1996.
Duration/current Activity
The initial test of the program at Keesler has been well completed. Although it has experienced limited opportunities to use ADP, it has been well received by employees and local unions. Other bases within AETC have also adopted the AETC guide and developed their own programs. Several instances of ADP have taken place, especially in cases where the infraction constitutes a first offense and the employee appears a good candidate for rehabilitation. Feedback on the program has been quite positive at all these bases.
Rules Governing the Activity
- Both management and the employee must elect ADP in lieu of traditional discipline.
- The employee must acknowledge the wrongdoing.
- The terms and conditions of alternative discipline are put in writing.
- The agreement is signed by the employee, his/her representative and management.
- The agreement provides for waiver of grievance/appeal rights for the current infraction.
- There is a determination of the "traditional" penalty in each case which will be imposed if the employee fails the terms of alternative discipline and can be used as prior offense for subsequent infractions.
General Accounting Office
How the Alternative Discipline System Works
The agency's alternative discipline system is an ad hoc, informal system. The system typically involves the issuance of an "in lieu of letter," i.e., a letter issued to the employee in lieu of the traditional disciplinary suspension that might be appropriate in that circumstance. This document is retained in the employee's official personnel folder as a temporary document for up to four years. The agency also has used a "paperless" suspension, i.e., a personnel action (SF-50) was issued documenting a suspension but, in cooperation with the agency's payroll office, money was not actually lost by the employee. The SF-50, however, was retained in the employee's personnel folder as a permanent document just as if the suspension action had not been "paperless." There is no formalized procedure in place for the agency's system.
Background/Objective
The objective and background of an individual case can be cited to describe the background and objectives of the program generally. In this individual case, the employee had a leave problem, a result of alcoholism. Less severe disciplinary action (i.e., reprimand) had not resulted in correction of the attendance problems. Management and the Employee Relations staff felt something more had to be done to get the employee's attention. Putting the employee on a formal suspension was not perceived as useful to either the employee or the agency. On the other hand, there was a need to document the employee's record in the event of possible future actions. The employee was issued a letter in lieu of being suspended. The employee agreed to the "in lieu of letter" which documented the employee's leave problems. By agreeing to the "in lieu of letter," the employee waived any appeal and grievance rights.
Duration/Current Activity
The use of alternative discipline at the agency operates strictly on an ad hoc, informal basis as the need arises. Given the relatively small number of adverse actions initiated by the agency, alternative discipline has been used infrequently.
Rules Governing the Activity
There are no ritten rules for alternative discipline at the agency.
Health and Human Services-Food and Drug Administration
How the Alternative Discipline Program Works
At FDA, managers have the option of offering employees alternative discipline (AD) in lieu of traditional, formal discipline for misconduct. Other than certain minimum standard requirements (see below), there is a great deal of flexibility in the program to ensure that AD agreements are tailored to meet the needs of the agency and the employee. The AD program is viewed as a win-win proposition. Employees experience less hardship (no loss of pay in a suspension and only a temporary record of discipline), and the agency does not lose the employee's services as it would during a period of traditional suspension. It is management's option to offer AD, and the employee may accept or decline. If AD is declined, traditional discipline is pursued. AD is not an entitlement and is not precedent setting.
Background/Objective
The program's objective is to provide an additional management tool that may improve communications and interpersonal working relationships, correct behavior, and improve the efficiency of the service. Seeking the employee's agreement to AD provides the employee a more positive and equal role in correcting the problem and enables employees to avoid being subjected to traditional disciplinary action that can result in barriers and resentments detrimental to the accomplishment of the agency's mission and to the employee.
Duration/Current Activity
FDA has been using AD since approximately 1995 and has used AD in many situations where it was deemed appropriate.
Rules Governing the Activity
AD agreements must be in writing and be signed by the employee and appropriate management official. Agreements will at least include: a statement that the employee voluntarily elects to enter into the AD agreement in lieu of a specified formal, traditional disciplinary action; a brief description of the misconduct; a statement of the employee's admission to the misconduct and commitment to improving; a statement that, should further misconduct occur during the life of the AD agreement, it will constitute a prior disciplinary record; a statement that there will be no SF-50 implementing the agreement, but that the AD agreement will be maintained in an administrative file (rather than the OPF) for four years; a waiver of all rights to grieve, file a discrimination complaint, or otherwise contest the AD agreement, but with retention of the right to contest any violation of the agreement by management and any future disciplinary action taken against the employee; and an advisement that the employee may take advantage of the services of the Employee Assistance Program.
NASA
How the Alternative Discipline System Works
Of NASA's ten Centers, Lewis Research Center is the only one with a formal, written alternative discipline policy. The Lewis Center issues letters of discipline in lieu of suspension of up to 14 days, which are retained in the personnel file for two years and carry the same weight as a formal suspension action. Most of the other Centers have experimented with settlement in lieu of formal discipline informally, including preproposal settlements. Headquarters actively encourages the Centers to consider settlement as an option in every disciplinary situation, and to share their experiences with each other. NASA considers their extensive use of Last Chance Agreements to be part of this approach.
Background/Objective
The objective of alternative discipline is getting an employee to commit to resolving the problem and becoming productive. In many cases, AD results in corrected behavior, and where it does not, a foundation is laid for more formal and severe action. In either case, the emphasis is kept on the issues, rather than on procedure.
Duration/Current Activity
The Lewis Center has had a formal policy since April 1993. It is more difficult to state a duration for the more informal instances of alternative discipline elsewhere in NASA, but Headquarters has been promoting the approach for over two years.
Rules Governing the Activity
The Lewis Center has a formal written policy. There are no "rules" for the use of alternative discipline elsewhere in the agency. The basic principles promoted by Headquarters are:
- Consider alternative approaches in every disciplinary situation.
- Develop agreement as early in the process as possible.
- Work with the EAP any time personal issues may be present. Contact
National Security Agency
How the Alternative Discipline System Works
Traditional discipline is often bureaucratic and time consuming. The employee, aware that disciplinary action has been proposed, remains in the workplace during the processing time, creatinga situation that is often negative for the employee, coworkers, and management. Alternative Discipline (AD) is a more constructive means of correcting behavior. AD conveys to the employee that the misconduct must stop, while at the same time demonstrating good will on the part of management. AD is a more effective use of resources, allowing the employee to remain in a duty status for a longer period of time. The punitive approach of traditional discipline is replaced with an opportunity to demonstrate improved behavior through constructive action, i.e., donating leave to the leave bank, giving briefings or writing papers relative to "lessons learned." When implemented properly, AD can be a win/win for all concerned.
Background/Objective
Following a successful two-year pilot program, AD was formally implemented at NSA in 1998. The objective is to offer a constructive alternative to the traditional disciplinary process.
Duration/Current Activity
NSA has recommended AD increasingly since it was first introduced to NSA in 1996. A primary performance objective for all ER counselors is to consider every case involving a 14-day suspension or less for AD and to document the reason whenever a case should not be resolved in such a manner.
Rules Governing the Activity
Rules as outlined in draft Standard Operating Procedure:
- Misconduct must be minor.
- Mnagement agrees to participate.
- Employee freely agrees to participate.
- Employee admits to misconduct.
- Employee waives all due process rights.
- Employee understands AD Agreement is binding.
- Employee knows AD agreement may be cited in future disciplinary action.
Navy- Fleet & Industrial Center, San Diego
How the Alternative Discipline System Works
In addressing misconduct, a supervisor first meets with the employee and asks the employee to develop a solution to the workplace problem caused by the employee's misconduct. A letter is developed to outline the proposed solution and the supervisor determines the reckoning period after which the letter is destroyed if the employee's behavior improves. If misconduct continues, step two of the process involves a second meeting which results in a constructive action plan outlining commitments the employee will make to improve. This letter remains in the employee's personnel folder for two years. If additional misconduct occurs, the supervisor meets with the employee to determine why the problem is continuing. After hearing the employee's response, the supervisor drafts a letter notifying the employee that continued misconduct will result in a proposed removal notice. The employee meets with the supervisor and is sent home for the remainder of the day to consider his/her responsibility to make a change or risk removal.
Background/Objective
The Human Resources Department egan adopting Dr. Edward Deming's philosophy of management and took a look at the employee and labor relations function to determine what could be done more effectively. The conclusion was that the traditional system of discipline created a hostile, confrontational environment for supervisors and employees and rarely resulted in changed behavior. Further, it was costly and inefficient to have employees suspended from the workplace. The agency drew from a program at McDonald-Douglas Corporation and other programs within Navy in developing the constructive discipline process (see also Constructive Discipline program at Naval Surface Warfare Center).
Duration/Current Activity
The constructive discipline process went into effect in 1988 and has been implemented at many of the activities serviced by the Human Resources Department. The program is considered extremely successful in that real behavioral change has been seen in employees whose supervisors participated in the process. There has been a reduction in formal actions taken and actions appealed to MSPB, and the constructive discipline process has been upheld in terms of meeting the need for progressive management action.
Rules Governing the Activity
Where the process has been put into place, HR staff provide briefings and training for supervisory personnel. Additionally, supervisors are given sample letters that can be adapted to the particular circumstances of each case. Union representation is allowed at all stages of counseling. The multiple unions representing employees at the facilities were consulted at the time the process was implemented.
Postal Service
How the Alternative Discipline System Works
Recognizing the need to maintain an effective workplace while taking appropriate discipline based on misconduct, the United States Postal Service (USPS) began several years ago to issue letters of warning in lieu of suspensions for supervisory employees. This program requires managers to issue a letter of warning when a supervisor's misconduct warrants a suspension of 14 days or less. The warning letter carries the weight of a time-off suspension (as an element of prior discipline should future discipline become necessary) and has the benefit of keeping the employee on duty. Situations involving suspensions of more than 14 days, indefinite suspensions, or suspensions ordered by third parties as a modification to a removal action are exempt from the warning letter program.
Background/Objective
This program was developed to provide management with an alternative approach to discipline when misconduct by a supervisor merited a short suspension. The Postal Service recognized the diminished efficiency when a supervisor is away from his or her duties.
Duration/Current Activity
The warning letters in lieu of time-off suspension program was piloted for several years in the U.S. Postal Service's New York Metro and Northeast Area Offices (formerly the Northeast Region). An evaluation of the program showed positive results despite some concerns that the warning letters might not be taken seriously by the supervisor being disciplined or that managers might find the letters too easy to issue and abuse the process. Based on the overall success of the pilot, the USPS implemented the program in 1996 on a nationwide basis for all non-bargaining unit employees.
Rules Governing the Activity
The warning letters are styled after the traditional adverse action notice and a separate appeals process has been established for these actions. The employee may reply orally and/or in writing to a higher-level manager than the individual who issued the letter. That manager will issue a Letter of Decision which may be appealed to the Area Human Resources Manager. The USPS implemented the pilot program and the permanent program in cooperation with the management associations. The program is documented in a Postal Service Management Instruction.
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