Few managers relish calling out an employee for poor performance. The reasons can vary, but the outcome is always the same — an unpleasant experience for both parties, not to mention their colleagues.

Jason Yarborough, utilities director in Palm Bay, Fla., and a 12-year public sector veteran, knows this from experience. In his early years as a manager, he supervised an employee who was an ethnic minority and a practicing Muslim. He was also a chronic underperformer, but Yarborough avoided confronting the issue because he was intimidated by the religious and racial elements involved.

Ultimately, the employee forced the issue when Yarborough found him asleep on the job — cause for termination. But in retrospect, he believes that more direct feedback about the employee’s performance — good and bad — would have helped immensely.

“If I had been a more seasoned manager with more training, I would have handled it differently,” Yarborough observes. “I would have developed a better paper trail and provided more direction — caught him doing things right as well as disciplining him for doing things wrong. That way, he might have been a more productive employee. Or we might have terminated him earlier.”

Keeping track

Yarborough’s experience under-scores the importance of progressive discipline, which he was exposed to later during an intensive, 8-week human resources certification program at a nearby college. That training has made all the difference for him.

Proper disciplinary action is no small matter. At the least, public sector managers who don’t practice progressive discipline expose themselves and their employers to liability in union arbitration cases. The absence of discipline also creates low morale among employees who see laggards and rule violators still receiving paychecks while they do the heavy lifting. At worst, inaction can foster costly and protracted lawsuits.

At some point in a career, almost every public sector manager will have to discipline an employee. Progressive discipline, in which the severity of the penalty increases with each infraction, is effective.

Imposing such discipline isn’t always easy. It requires a written policy, and to implement it properly, managers must compile extensive documentation. But the policy assures employees that they won’t be fired for minor infractions, and it gives employers solid ground from which to defend against legal challenges.

A manager who believes discipline is necessary must first put the situation in context. Yarborough paints a hypothetical scenario where an employee improperly fills out a wastewater treatment compliance report that must be submitted monthly to a state agency. “First of all, I’d find out if the employee knew how to fill out the report properly,” Yarborough says. “It’s not fair if I never gave the employee the resources to succeed — in this case, training in how to fill out the report.

“If I determine they have the training and resources, then I look at the severity of the problem. Did it result in a warning from the state, or thousands of dollars in fines? Then I look at the employee’s personnel file and see if they’ve had problems in the past. If there’s no history, then I’d give a verbal warning. If not, a written warning would be appropriate. And if the employee already had incurred time off without pay, I’d have to start looking at termination.”

Documentation is key

Written documentation of warnings is critical. “I’ve had employees with nothing but ‘attaboys’ in their file, which makes it awful difficult to terminate them,” Yarborough says. “Nowadays, people file lawsuits at the drop of a hat. And if the matter goes before the ultimate arbiter — a judge or a jury — written warnings are essential. Otherwise it looks like you’re terminating a stellar employee.”

This is especially true when dealing with unions, as many municipal managers do. Yarborough notes that Florida is an at-will state, where employees and employers can sever their relationship without any liability. “But the union contracts are pretty intense in terms of looking out for the interests of employees,” he says

“So if you go to arbitration, you want to be sure you have a paper trial that supports and justifies any actions you took. Don’t leave anything to chance. If you leave out any pieces of the puzzle, an arbiter won’t be able to piece it together.”

Managers must document specific behavior, not just vaguely note, for example, that the employee has a bad attitude. “You need to focus on things that are observable and can be documented,” he says. “I can’t document that a guy maybe had a fight with his wife and that’s why he’s angry at work. But I can document things such as the employee raised his voice at fellow employees, swore, or acted aggressively.”

On the other hand, managers should also follow the credo of “catching someone doing things right” and document such instances in personnel files. “Positive comments along with written warnings show you are balanced and fair, and see employees in their totality,” Yarborough notes. “It shows I was a fair and reasonable manager, which is the legal yardstick by which things are measured in court.”

The last resort

If terminating employees is the only option left after repeated disciplines, Yarborough suggests doing it at the end of the day on a Friday. “If you’re dealing with someone of the opposite sex, it’s also important to have another person in the room — preferably another woman, if you’re a man — so there’s no way the departing employee can make untrue allegations about anything,” he advises.

“In fact, having a third party present is a good idea even if it’s only a disciplinary action. That way, it never comes down to your word against the employee’s word. And again, I highly recommend that the third party be a person of the opposite sex.”

Good relationships with union leaders can make a huge difference in challenging disciplinary cases. “Try to build a relationship with the union representative,” Yarborough suggests. “Go out for lunch once a month, even if it’s a Dutch treat. I’m not saying you should go out and buy a relationship, but you should develop a partnership. A less-than-productive employee with a bad attitude isn’t good for anyone — the union, the employees or the employer.

“All things being equal, if you have a good relationship, the union is more likely to side with helping you out. If it’s an adversarial relationship, they won’t help you out on a small matter or a large matter.”

Yarborough also suggests that managers solicit input from unions in sticky disciplinary situations. “Don’t try to cram a solution down an employee’s throat,” he says. “You don’t have to be Draconian. You don’t always have to come down on someone like an 800-pound gorilla.”

Practicing progressive discipline may not make it easy to discipline employees. But it could go a long way toward making an unpleasant task a little more palatable.