Guide to Alternative Discipline Memo from Kaye Cook introducing the Alternative Discipline Guide.
Download the entire Alternative Discipline Guide:
Alternative Discipline Guide (PDF, 195k)
(contains the entire guide plus all attachments)
Alternative Discipline Frequently Asked Questions:
- What is Alternative Discipline?
- How does it work?
- What are the criteria for using it?
- When is alternative discipline inappropriate?
- How does it benefit the organization and the employee?
- During what stage of the process can it be used?
- What are some examples of alternatives?
- What kind of format should be used?
- How do you know when the process is over?
Alternative discipline is an alternative to traditional penalties for employee misconduct. It is a form of alternative dispute resolution that can be used to effectively resolve, reduce or even eliminate workplace disputes that arise from circumstances where disciplinary action is appropriate. The traditional penalties which alternative discipline generally replaces are disciplinary actions, i.e., letters of reprimand and suspensions of 14 days or less, and adverse actions, i.e., suspensions of 15 days or more and removals. Last chance agreements are another form of alternative discipline.
The option to offer alternative discipline to an employee is the right of
the supervisor or manager with authority to propose or decide a disciplinary
action against the employee. The process allows the supervisor or manager and
an employee who has committed an infraction to negotiate an alternative form
of corrective action in lieu of traditional discipline, provided that several
basic criteria are met. The agreement between the supervisor or manager and
the employee is then formalized in a written "Alternative Discipline Agreement," which
details all of the terms and conditions used to resolve the situation.
Supervisors are advised to contact their servicing Human Resources Office for assistance as early in the process as possible, and certainly prior to entering into any agreements with an employee.
- The employee acknowledges responsibility for the behavior(s) giving rise
to the need for corrective/disciplinary action, expresses remorse for such
behavior and agrees to not repeat the behavior(s);
- The supervisor or manager determines that alternative discipline has
a good probability of preventing further misconduct by the employee;
- The employee agrees to waive all grievance, appeal and/or EEO complaint
rights with respect to the particular action. The employee also agrees to
waive grievance and appeal rights in connection with the particular instance
of misconduct even if traditional discipline is later imposed because the
employee fails to fulfill the terms of the alternative discipline agreement.
However, an employee may not waive prospective EEO rights; and,
- The use of alternative discipline in cases involving bargaining unit employees must not be precluded by a negotiated agreement. Note: Where a term of an alternative discipline agreement affects a condition of employment of one or more bargaining unit employees (other than the employee whose conduct is at issue), management is obligated to notify the Union and give it the opportunity to exercise its representational rights.
- Alternative discipline does not apply to employees serving a trial or
probationary period, or a temporary appointment;
- Alternative discipline does not apply to employee misconduct that by statute
requires a specific penalty, e.g., a 30-day suspension for the willful misuse
of a government-owned vehicle.
- Alternative discipline does not apply in cases involving certain serious
infractions, e.g., discrimination, reprisal/retaliation, and sexual harassment;
- Alternative discipline may not apply in certain cases of workplace violence, such as when the employee’s continued presence in the workplace would pose a threat to the employee or others.
- Less negative impact on the supervisor/employee relationship: The interactive
process of developing an alternative discipline agreement between the supervisor
and employee can provide common ground for preserving or repairing the employer-employee
relationship, which is frequently negatively impacted after traditional discipline
is imposed. The employee can be viewed as an individual who is willing to
take responsibility for his/her actions and the supervisor can be viewed
as willing to work with the employee and help restore or rebuild a cooperative
work relationship. In addition, by actively participating in the process,
an employee is more likely to fulfill the expectations agreed to and modify
his/her behavior appropriately.
- Productivity of the employee: The organization retains the services of
the employee instead of losing productivity in cases where the employee would
have served a traditional suspension. There is little or no interruption
to the daily flow of work and no need to temporarily inconvenience co-workers
who may have to pitch in while an employee is serving a suspension.
- Quicker closure: Because cases resolved by alternative discipline agreements
are closed more quickly than traditional cases and because they include waivers
of grievance, appeal and complaint rights, the matter is resolved and closed
with the signing of the agreement. There are no lingering issues or litigation
to disrupt the work of the organization or the relationship between the employee,
his/her supervisor and the organization as a whole.
- Addresses the real purpose of discipline: Discipline is meant to be remedial
and corrective rather than punitive. Alternative discipline, with its focus
on a collaborative, constructive outcome, is truly remedial.
- Time and resource savings: As described more fully in the next section, alternative discipline may be offered at any stage of the disciplinary process. When alternative discipline is used before a traditional penalty has been proposed or decided, a significant savings in time and resources can be realized for the supervisor, the employee and the servicing Human Resources Office. Since the traditional disciplinary process is often a lengthy one, even if alternative discipline is used after a decision has been made, additional time and resources to investigate and defend against complaints, grievances and appeals can be saved since the employee must waive all rights to contest the action.
Alternative discipline may be initiated instead of traditional discipline at any stage of the traditional process. Supervisors should notify their servicing Human Resources Office prior to taking any action.
Instead of traditional discipline: If the supervisor decides to offer an employee alternative discipline instead of initiating the traditional disciplinary process, the supervisor must first prepare a written memorandum for the employee that identifies: (1) the employee's misconduct; (2) the law, rule, regulation, policy or procedure that was violated; and, (3) the traditional penalty that would have been proposed in the absence of alternative discipline. (See Attachment 1 in PDF (12k) or Word (26k))
The supervisor must provide the employee an opportunity to review the memorandum in order to make an informed choice between traditional and alternative discipline. If the employee chooses alternative discipline prior to the initiation of the traditional disciplinary process, he/she must be informed that in choosing alternative discipline at this stage, he/she waives Chapter 75 due process rights. The alternative discipline agreement must contain an explicit description of these waivers. The employee must also agree that if he/she fails to fulfill any term or condition of the agreement, the traditional penalty identified in the written analysis will be imposed without additional due process, including the right to grieve or appeal. (See Attachment 2 in PDF (29k) or Word (37k))
During the traditional disciplinary process: Alternative discipline may also be offered at any time after the traditional disciplinary process has begun. For example, it may be offered after a notice of proposed suspension or removal has been issued, after the employee's oral and/or written reply to a proposal, or after a decision has been reached. (See Attachment 3 in PDF (29k) or Word (38k))
Both supervisors and employees have the option of terminating the alternative discipline process at any time and proceeding with the traditional disciplinary process.
There are a number of options that, singly or in combination, may be appropriate as alternatives to traditional penalties. Note that the following list of sample alternatives is not all inclusive and must be approved by the supervisor or manager:
- Donation of annual leave to an approved recipient in the Leave Share Program.
- Leave without pay (LWOP) in lieu of a suspension.
- Incremental suspension, i.e., spread out over a specified period.
- Paper suspension, in which an SF-50 documenting a suspension of a specific number of days is placed in the employee's Official Personnel File, but the employee does not actually serve the suspension. He/she remains in an active duty status, performing work and receiving pay. The SF-50 could be removed from the OPF after an agreed upon period of time, e.g., 2 or 4 years.
- Forfeiture of a benefit for a specific period of time, e.g., forfeiture of the Alternate Work Schedule (AWS) option for three months as an alternative penalty for leave abuse or absence without leave (AWOL) issues.
- Performance of unpaid, off-duty community service related to the offense. For example, instead of a 30-day suspension for drinking alcohol on the job, the employee agrees to perform 120 hours of community service in an alcohol abuse center. This must be documented to ensure that the employee performed the community service work.
- Agreement to seek and actively participate in counseling via the Employee Assistance Program or other approved program to address the misconduct (e.g., a financial counseling program or Alcoholics Anonymous). This must be documented to ensure that the employee attends and participates without violating the employee's privacy.
- Writing, developing and/or presenting a variety of memoranda, instructional guides, training modules, etc., that explains a specific aspect of proper conduct and the potential consequences for violating approved standards.
- Making restitution to either the Bureau or the Department of Interior for monies owed to the government for unauthorized personal long-distance phone calls and credit card charges.
Attachments 2 in PDF (29k) or Word (37k) and 3 in PDF (29k) or Word (38k) are the recommended format for such agreements. They are presented in a commonly used settlement agreement format and clearly delineate the terms agreed to by the supervisor or manager and the employee. Alternative discipline agreements, like settlement agreements, are considered to be contracts between parties. As such, whatever is spelled out in the document frames any future argument as to the meaning of various terms. Therefore, terms should be explicit, particularly those that explain what the employee will do in lieu of traditional discipline and the rights he/she is waiving.
At a minimum, all alternative discipline agreements should include the following:
- A description of the misconduct and a statement that the disciplinary analysis resulted in a determination that a specified "traditional" penalty is warranted under formal disciplinary procedures. If alternative discipline is agreed to after initiation of the traditional process, attach the proposal and decision letters, as appropriate, to the agreement.
- A statement in which the employee admits that he/she engaged in the improper conduct, recognizes the misconduct was unacceptable, and promises that these acts will not occur again.
- A description of the terms and conditions that must be met for the employee to satisfactorily fulfill the agreement. The terms must include the timeframe(s) in which the employee must satisfy the agreement.
- A clause addressing the retention period of records associated with the agreement, such as the case file and a copy of the agreement. Five (5) years is the retention period for disciplinary and adverse action files.
- A statement in which the employee agrees that if he/she fails to satisfy the terms and conditions of the agreement, the traditional penalty specified in the agreement will be effected immediately.
- A statement that the agreement was entered into voluntarily and that the employee had the opportunity to seek the advice of a personal representative.
- A statement that the EMPLOYEE agrees to waive any and all rights to appeal, grieve, complain of, or otherwise contest actions relating to or arising out of the misconduct addressed in the alternative discipline agreement. However, the EMPLOYEE cannot waive prospective EEO complaint rights.
- A statement that the misconduct addressed in the alternative discipline agreement constitutes an offense and may be used to support any future progressive disciplinary action(s), traditional or alternative.
- A statement that the terms and conditions of the agreement are confidential but that they may be shared with parties who have an official need to know.
- A statement that the terms and conditions of the agreement are nonprecedential, meaning they are specific to the employee, and may not be cited for comparison purposes in any other case.
- If applicable, an acknowledgment that no salary or wage compensation can be requested for any off-duty volunteer service and that such service is not covered by Worker's Compensation.
- The signatures of the parties to the agreement. At a minimum, this will include the employee and the supervisor or other management official authorized to enter into such an agreement. It may also include the employee's personal or Union representative.
The terms and conditions of the alternative discipline agreement are considered fulfilled when the supervisor or manager determines that the employee has satisfied the terms of the agreement.
When the terms and conditions of the alternative discipline agreement are satisfied, the supervisor or manager must certify this in writing to the employee. See the "Final Disposition" section of the sample alternative discipline agreement.
If the employee is unable to fulfill the terms and conditions of the alternative discipline agreement due to circumstances beyond his/her control, the parties should revise the agreement. For example, an employee would be unable to meet the terms of an agreement if it required the employee to perform 200 hours of community service within a six-month period, but the employee became incapacitated for five or six months due to an automobile accident.
If the employee fails to satisfy the terms and conditions of the agreement, the supervisor or manager will immediately issue a notice of violation to the employee. The notice will inform the employee that the agreement has been breached and the traditional penalty as specified in the agreement will be effected immediately. (See Attachment 4 in PDF (10k) or (Word (25k)
Note: For purposes of records management, the supervisor or manager should forward a copy of this notice to the servicing Human Resources Office.