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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

w w w . l a b o r l a w y e r s . c o mE D U C A T I O N P R A C T I C E G R O U P

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)




• Age Discrimination in Employment Act (age 40 and

over discrimination/harassment)

• Americans with Disabilities Act (disability

discrimination/harassment)




• 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.



• 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.



• 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.”




• 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 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.




• 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.



Do not create “smoking Record exact quotes

guns” and voice labels

Bad example: Bad example:

Stan sexually harassed an She used profanity and

employee. left.

Better: Better:

Stan violated the no She said, “This is bull----

harassment policy. and I am leaving.”



• 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.



• 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?



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.



• 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?



• 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?



• 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?



• 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.



• 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.



• 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?

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

Suzanne K. Bogdan

• Education

• Private School Law

• Wage and Hour Law

• Employment Discrimination and Harassment

• Title VII

• Civil Rights Litigation

• Employment Contracts

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