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Supervisor Bootcamp: Drill Down on Coaching,
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
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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?
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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?
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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?
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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)
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What Are the Laws You and the School
Should Be Concerned About?
• Age Discrimination in Employment Act (age 40 and
over discrimination/harassment)
• Americans with Disabilities Act (disability
discrimination/harassment)
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What Are the Laws You and the School
Should Be Concerned About?
• Family and Medical Leave Act (personal
leave rights)
• Common law claims (breach of/interference
with contract, negligence, invasion of
privacy)
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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.
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Good Documentation Principles
and Communications
Processes
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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
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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
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Different Forms/Processes for Documentation
There are three primary forms of documentation
that schools use:
• Coaching and Counseling Forms
• Observation Forms
• Evaluation Forms
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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).
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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.
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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.
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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.
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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
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Provide Timely Counseling/Coaching and Feedback
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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.
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Regular Communications About Performance
• 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.
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Regular Communications About Performance
• 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.
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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.
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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.
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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.
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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.
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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.”
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Outline Specific Steps, Issues, or Goals that
You Want the Employee to Meet
• 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.”
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Outline Specific Steps, Issues, or Goals that
You Want the Employee to Meet
• 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.
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Outline Specific Steps, Issues, or Goals that
You Want the Employee to Meet
• 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.”
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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.
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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.
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Documenting Discipline
• Record the date, time, and detailed information.
• Documents facts — not conclusions.
• Be objective.
• Be simple and specific.
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Documenting Discipline
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.”
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Documenting Discipline
• 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.
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Documenting Discipline
• 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.
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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.
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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?
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IF THERE IS A
NEED
TO SEPARATE
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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!
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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.
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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?
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Non-Renewal vs. Termination
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.
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Non-Renewal vs. Termination
• 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).
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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?
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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?
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Questions to Ask Before Termination/Non-Renewal
• 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?
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Questions to Ask Before Termination/Non-Renewal
• 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?
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Questions to Ask Before Termination/Non-Renewal
• 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.
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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.
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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.
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Handling the Separation
• 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.
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Handling the Separation
• 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.
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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