Disciplinary Action: Open-Heart Conversations

Most employment litigation is caused by an angry employee who felt that he/she had not been treated fairly by not receiving his/her “day in court.”

This feeling of unfair treatment by an employee is usually the result of a disciplinary process that failed to thoroughly investigate an incident and/or failed to properly communicate expectations.

As such, we implement our proprietary disciplinary review process that is designed to eliminate the flaws of traditional disciplinary action.

Our program is called Open-Heart Conversations and it has two Phases.

Phase 1 – Initial Phone Review

1. When an organization decides that disciplinary action is necessary to correct an issue with an employee, the manager to whom the employee reports can contact us to review the situation. We will walk the manager thorough a 14-point checklist for determining whether just and proper cause may exist for disciplinary action.
2. If it is decided that proper cause is not present at this time for disciplinary action, we will develop with the manager a strategy for monitoring the situation and continuing to build a case.
3. If it is decided to proceed with disciplinary action, we will take the following action:
   a. For an oral warning, we will brainstorm with the manager the issue and expected changes in performance and behavior as well as any problems that may arise in the meeting when meeting with the employee. The meeting can be handled by the manager alone or we can participate in the meeting.
   b. For a written warning, we would initiate Phase 2.

Phase 2 – Preparation of Written Documentation

1. We will send the form, “Issues Resolution Worksheet Manager Confidential,” to the manager for the manager to initially record information. The manager will email the completed form to us.
2. We will call the manager to review the form. During and after the phone conversation, we will make additions, deletions, and changes to the form in an effort to clarify any points and minimize wording that may be inflammatory.
3. We will retype the “Issues Resolution Worksheet Manager Confidential” information onto a new form that will be subsequently given to the employee. We will review the new form with the manager.
4. In conjunction with the manager, we will agree to any final changes to the form.
5. We will then brainstorm and role play with the manager any issues that may arise during the disciplinary action meeting with the employee. We will review with the manager the suggested disciplinary action meeting format, which is part of the Open-Heart Conversation Program. We will participate in the disciplinary session if requested by the manager.

Following the Phase 1 or Phase 2 meeting, we will contact the manager to debrief about the session and troubleshoot any issues that may have come up during the meeting.