8: Misconduct, Performance Improvement Counseling, and Disciplinary Action

Swarthmore has a strong commitment to excellence in all we do, and we depend on the members of the Swarthmore community to uphold the highest professional standards. We strive for an environment of trust, unquestioned integrity, and a genuine concern for the welfare of the organization and of others in our community.

Issues of poor performance or misconduct, however, compromise both the individual and the organization. For this reason, Swarthmore expects performance and professional conduct to meet high standards at all times. Performance or conduct issues that arise will be addressed through a process of performance improvement counseling and disciplinary action.

Performance improvement counseling is an extension of performance evaluation and professional development. It is a process intended to help supervisors and staff members overcome work related shortcomings, strengthen job performance, and maintain a successful employment relationship. Human Resources (HR) staff is available to supervisors and employees for assistance and support with performance improvement counseling and discipline process.

Disciplinary action generally occurs when performance improvement counseling has not had the desired effect or when misconduct warrants it. The disciplinary actions described below distinguish between less serious and more grave actions of misconduct. Supervisors, in consultation with Human Resources, may exercise discretion as appropriate when following the schedule of counseling.

Human Resources is available for consultation at any step of the performance improvement counseling process and should always be consulted before disciplinary action or termination of employment.

Performance Improvement Counseling

During the orientation period

The orientation period for new staff members is particularly important. The department uses this time to establish guidelines and expectations, and the staff member uses the time to demonstrate competence regarding job duties. If job performance during orientation is unsatisfactory, supervisors will give the staff member oral or written notice of the deficiency and explain how the performance needs to improve in order to continue employment. Supervisors may also elect to extend the orientation period, to provide additional training, or time to evaluate whether the individual will be able to meet expectations.

A staff member may be terminated without further notice during the orientation period if he or she fails to meet performance expectations. During the orientation period an employee does not have access to the standard grievance procedure to appeal a disciplinary action or termination, but may access the discrimination grievance procedure (see Chapter Eleven).

After the orientation period

Oral Warning for Performance or Misconduct Problems

Problems in performance or conduct that arise after the orientation period can occur at any point in an employee's career. Sometimes they are due to new tasks or changes in work routine or are the result of personal problems an employee may be experiencing. Raising issues and exploring solutions is the responsibility of both supervisors and employees. When a supervisor notices a performance issue, it is expected that they will bring the issue to the attention of the employee in a respectful and timely manner. Discussion with the staff member should always be the first step. After the discussion, an informal counseling note or memo should be created to identify the problem and the agreed upon solution. This memo will not be placed in the employees's file unless the problems continue and discipline moves to the written notice stage. The employee should sign the memo and receive a copy.

Written Notice for Performance or Misconduct Problems

If performance concerns or misconduct persist, or are of a serious nature similar to those listed below, a written notice should be initiated, and can be the first step in the counseling process.

  1. Excessive occurrences of absence, tardiness, or requests to leave early that are not due to an FMLA approved health condition
  2. Minor neglect of, or failure to accurately complete assigned duties
  3. Failure to call in each day according to departmental policies when unable to report for work
  4. Failure to report back to work from authorized breaks in a timely fashion
  5. Unproductive use of work time
  6. Working unauthorized overtime
  7. Making excessive use of business phones for local personal calls
  8. Minor violation of the College's no-smoking policy
  9. Carrying unauthorized persons in College vehicles
  10. Failure to interact collegially, maturely, and effectively with co-workers, students, or other individuals with whom the employee comes in contact
  11. Failure to wear required uniforms or other work attire

As before, the supervisor should begin by initiating a discussion with the staff member. The supervisor should give the staff member an opportunity to tell "their side of the story" before formal action is taken, especially in cases where the decision to take action will be based on reports from others rather than on first hand observation by the supervisor. If, after discussion, the supervisor still concludes that formal disciplinary action is appropriate, a written notice is provided to the employee. This step formalizes the discussion between a supervisor and a staff member about a behavior that is inconsistent with College or departmental policies or expectations. Below is a guide for the type of information supervisors should consider including in the written notice.

  1. What the performance expectations are for anyone who holds this position.
  2. How the staff member's current performance is falling short of those expectations.
  3. Whether the employee has any prior counseling/discipline notices.
  4. What corrections the staff member will need to make in order to meet expectations.
  5. The time frames for correction in order to reach a satisfactory level of performance.
  6. The consequences of failure to correct the performance concern to the expectations (including action that may lead to termination of employment).

The supervisor should also indicate what, if anything, the department will do to support the needed changes. For example, offering closer mentoring or providing additional training resources. Supervisors are asked to consult with Human Resources before issuing a formal written notice.

This documentation should be provided to the staff member and the staff member should sign the notice indicating she or he has received a copy. If the staff member does not wish to sign the written notice, the supervisor may indicate on the form that the employee did not wish to sign, and the disciplinary action will proceed. Once signed, a copy should be sent to Human Resources for the staff member's central personnel file.

If performance or conduct improves to an acceptable level and does not recur for six months and no other disciplinary actions are required during that time, the written notice should be considered resolved. However, the written notice remains on file as part of the individual's historical record and a pattern of performance problems, regardless of improvement, will be considered grounds for disciplinary action, up to and including dismissal.

Final Written Notice for Performance or Misconduct Problems

If performance or conduct does not improve to an acceptable level within the time frames established in the written notice, or there are serious performance or conduct problems similar to those listed below, a final written notice may be appropriate and can be the first step in the counseling process.

  1. Rude, unprofessional, or abusive conduct with a co-worker, supervisor, student, or other individual with whom the employee comes in contact or conduct which disrupts the business of the college
  2. Violation of the College's solicitation policy regarding seeking contributions or selling on College time or premises
  3. Neglect of duty that could result in loss or injury
  4. Violation of a College safety rule
  5. Violation of the College's harassment policies
  6. Accessing confidential information without authorization

Documentation of the performance problems should state how the staff member's performance falls short of expectations, what must be accomplished in order to meet expectations, and the time frames for achieving expectations. Most importantly, it should clearly state the fact that failing to reach the necessary level of performance within the established time frames will end the employment relationship. As in the previous step, supervisors should consult with Human Resources before issuing a final written notice.

The staff member should receive a copy of the final written notice and should sign the departmental copy as acknowledgement of receipt. As before, if the staff member does not wish to sign the written notice, the supervisor may indicate on the form that the employee did not wish to sign, and the disciplinary action will proceed. A copy also should be sent to the staff member's central personnel file in HR, along with relevant copies of any prior written counseling.

If the performance or conduct improves to an acceptable level and does not recur for six months, and if no other disciplinary actions are taken during that time, the matter should be considered resolved. However, the written notice remains on file as part of the individual's historical record and a pattern of performance problems, regardless of improvement, will be considered grounds for disciplinary action, up to and including dismissal.

Decision Making Leave/Suspension

As a final step before discharge, the supervisor has the option, but not the obligation, to offer the staff member the opportunity to take a one day, paid "decision making" leave. This leave may be offered at the same time a final written notice is given, or at a later date as appropriate.

The staff member will be asked:

  • to think about the continued or serious performance or conduct deficiency and
  • to decide if he or she is able to commit to correcting the concern.

If the staff member desires to correct the problem, he/she should be prepared to discuss or commit to writing:

  • the actions he or she intends to take to address the concerns and achieve satisfactory performance and
  • what support, if any, he or she will need from the supervisor.

If the improvement plan is accepted by the supervisor and performance improves to a fully acceptable level and does not recur for six months, and if no other performance or conduct related actions are warranted, the matter should be considered resolved. As before, a pattern of performance or conduct problem will be considered grounds for disciplinary action, up to and including termination, regardless of improvement.

If the staff member cannot present an acceptable plan or does not feel he or she can successfully meet expectations under the conditions established by the supervisor, the staff member may choose to resign or the supervisor may choose to end the employment relationship.

Alternately, the supervisor may use a suspension without pay in place of the decision making leave as a last step before termination. Supervisors should consult with Human Resources before offering an employee a decision making leave day or issuing a suspension.

Misconduct that Warrants Immediate Discharge

Actions that involve dishonesty, violation of the law, or material risks to College operations or to the safety or well being of oneself or others are grounds for immediate dismissal. Examples include, but are not limited to:

  1. Unauthorized removal or destruction of property belonging to others, including the College, co-workers, or students and including discarded, excess, or found property
  2. Unauthorized use of College resources for personal gain
  3. Possessing an unauthorized weapon on College time or premises
  4. Threatening or hitting another person on College time or premises
  5. Refusing to obey a direct instruction from a supervisor
  6. Falsifying College records, including employment application and time records
  7. Unauthorized absence from the worksite that is not accurately reflected on time records
  8. Conviction of a crime involving controlled substances, dishonesty, violence, or other behavior that impairs suitability for employment
  9. Failure to report a criminal conviction to one's supervisor within five days of conviction
  10. Illicit use, possession, or distribution of drugs or alcohol on College time or premises
  11. Gross negligence that may result in significant injury or loss
  12. Sleeping on the job
  13. Absence of three consecutive workdays without authorization
  14. Violation of the College's non-discrimination or harassment policies
  15. Failure to respond to official on-call responsibilities
  16. Disclosing information the College considers confidential
  17. Violation of the College's Gramm-Leach-Bliley (GLB) Information Security Plan — refer to page 15-5
  18. Unauthorized use of College phones for long-distance calls

Supervisors should consult with Human Resources before discharging a staff member. Reasons for discharge should be documented in writing, with copies to (a) the staff member, (b) the departmental file, and (c) the central personnel file in Human Resources.

Appealing a Disciplinary Action or Discharge

Staff members who have completed their initial orientation period and feel that a disciplinary action or discharge is not consistent with College or departmental policy or practice, or is a pretext for illegal discrimination or other actions prohibited by law, have the right to appeal the action. More information is available in Chapter 11 under Grievance Procedures.

The grievance process is not available when the staff member chooses to resign, including cases where the resignation is in lieu of discharge, as the employee has initiated the action.


Eligibility for Transfer while on Performance Improvement Counseling/Disciplinary Action

Generally, employees who are engaged in performance improvement counseling are not eligible to seek other positions within the College. This is especially true if the counseling is for misconduct or for skills that are critical to the position being considered.

If the performance problems the staff member is experiencing are due to a mis-match of job requirements and the skills of the employee, it may be to the staff member's and the College's advantage to attempt to identify other opportunities where an individual may be more successful. However, staff members who have demonstrated problems of performance or misconduct in the past must demonstrate they are capable of appropriately resolving the problem before transfer is appropriate. If you are interested in a position that is a better fit, please discuss the matter with the Human Resources office.