Disciplining
and Terminating Staff Employees UPPS
No. 04.04.40
Issue
No. 10
Effective
Date: 11/30/2011
Review:
April 1 E4Y
01. POLICY STATEMENTS
01.01 This UPPS provides policies and procedures for
disciplining and involuntarily terminating regular and non-student, non-regular
staff employees.
01.02 For terminations that are the result of a
reduction in force (RIF), refer to UPPS
No. 04.04.14,
Staff Reduction in Force.
02. GENERAL PROVISIONS
02.01 This
UPPS incorporates all applicable portions of the Rules and Regulations of the
Board of Regents of The Texas State University System.
02.02 This UPPS applies to all regular and
non-student, non-regular staff employees, including administrative officers as
defined in Section 1.1 of Chapter V of the Regents' Rules.
02.03 Staff employees (except those with special
employment contracts) serve without fixed terms and at the pleasure of the
president or Board of Regents. As employees at-will, either the university or
the staff employee may terminate the employment relationship at any time with
or without cause and without liability for failure to continue the employment.
02.04 Only the president, vice presidents, deans and
directors reporting directly to a vice president have the authority to
involuntarily terminate regular and non-student, non-regular employees and sign
letters of involuntary termination. However, these officials may delegate in
writing to their account managers the authority to terminate non-student,
non-regular employees using the procedures described in Section 06.
02.05 The president delegates to each supervisor the
authority to discipline those whom he or she supervises, using any of the
disciplinary actions set forth in Section 05 of this UPPS except the sanction
of discharge (see Section 5.03 f.). However, before a supervisor suspends
without pay, demotes or reduces the pay of any employee, he or she must receive
the approval of the next higher level supervisor.
02.06 The staff of Human Resources is available to
both supervisors and employees to provide advice and assistance on employee
relations.
02.07 Although all information relevant to an
individual's employment relationship with the university constitutes his or her
personnel records, Human Resources maintains each staff employee's permanent
file.
03. INVOLUNTARY TERMINATIONS
03.01 Disciplinary – see Section 05.03 f.
(Discharge)
03.02 Non-disciplinary – On occasion the university
may determine it is in its best interest to involuntarily terminate an employee
for non-disciplinary reasons. Such reasons include lack of funding, no longer a
need for a position, completion of assigned project, expiration of project
time, end of “interim” status, or an employee’s inability to perform the duties
of a position due to illness or injury. Access the non-disciplinary form
template at http://www.hr.txstate.edu/Forms/employerelationforms.html.
NOTE: For information
concerning non-disciplinary, involuntary terminations as the result of a
reduction in force see UPPS
No. 04.04.14,
Staff Reduction in Force.
03.03 At-will – Staff employees serve without fixed
terms and at the pleasure of the president or Board of Regents. As employees
at-will, either the university or the employee may terminate the employment
relationship at any time with or without cause and without liability for
failure to continue their employment. Access the “at-will” form template at http://www.hr.txstate.edu/Forms/employerelationforms.html.
03.04 Prior to any termination, the discharging official must
consult with Human Resources to assure objective investigation of the case for
termination.
Additionally, Human Resources must provide a concurring signature on the
appropriate discharge document.
03.05 Non-disciplinary terminations of non-student,
non-regular employees are not grievable but employees may use the complaint
process as described in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy.
04. JOB ABANDONMENT
04.01 The university considers any employee who abandons his or
her job resigned from employment and will remove the employee from the
university payroll effective the employee’s last day worked or the last day of
approved leave.
Job abandonment occurs in either of the following situations:
a. An employee fails to report for duty on the
first regular workday after a leave without pay (LWOP), or
b. In a non-LWOP situation, an employee is
absent for three consecutive workdays without notifying his or her supervisor.
NOTE: Prior to
beginning the official termination process, the supervisor will make a good
faith effort to establish contact with or ascertain the whereabouts of the
employee before separating the employee.
04.02 Notification
The account manager will send a
certified letter, return receipt requested, notifying the employee of the
effective date of his or her job abandonment termination. Access the job
abandonment suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html.
a. For failure to return from an LWOP, the
effective date of termination is the last day of the approved leave of absence
period.
b. For a non-LWOP situation, the effective date
of termination is the last day worked or the last day of approved leave, as
appropriate.
04.03 Separation Paperwork. The account manager
will:
a. Process the separating Personnel Change
Request (PCR), indicating “job abandonment” in the Explanation section;
b. Attach to the PCR a copy of the certified
letter with return receipt requested (See Section 04.02); and
c. For a non-LWOP situation, also attach to the
PCR a memorandum to the director of Human Resources documenting the
supervisor’s efforts to contact the employee or ascertain the employee’s
whereabouts.
04.04 Because job abandonment is considered a
resignation, it is not processed as a disciplinary action. Employees may not appeal job
abandonment terminations through the complaint and grievance procedures in UPPS
No. 04.04.41,
Staff
Employee Mediation, Grievance, and Complaint Policy.
05. DISCIPLINARY OPTIONS
05.01 Staff employees are subject to disciplinary
action or dismissal for adequate cause. This does not, however, affect their status
as at-will employees. Supervisors
should apply disciplinary action in a consistent manner for all of their
employees.
The following list of infractions may result in disciplinary action, up to and
including dismissal. This list is not exclusive; other acts or omissions
contrary to standard work performance or conduct, may warrant disciplinary
action:
a. Failure to comply with state or federal law;
the policies, regulations, rules, and procedures of The Texas State University
System, Texas State University-San Marcos, or departments and work units of
Texas State;
b. Performance, conduct, or behavior, whether by
action or omission, that interferes with or adversely affects the orderly or
efficient operation of Texas State;
c. Insubordinate acts toward a supervisor that
interfere or impede efficient operations or the ability of a supervisor to
manage or function; or
d. Any other behavior that is not in the best
interest of the university or that undermines the employee’s ability to
continue as a university employee.
05.02 Supervisors are encouraged to use mediation
where appropriate in lieu of disciplinary measures. Mediation policy and
procedures are found in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy.
05.03 The following is a list of possible
disciplinary actions:
NOTE: Before taking
disciplinary actions "c. 2)" through "f.", the disciplining
official is required to consult with his or her supervisor and with Human
Resources.
a.
Oral Reprimand: This is the least severe disciplinary action. The
supervisor delivering the reprimand should keep a written record of this
sanction. Employees may appeal oral reprimands
through the complaint procedures in UPPS No. 04.04.41, Staff Employee Mediation, Grievance,
and Complaint Policy.
b. Written Reprimand: Written reprimands are
given either when oral reprimands have failed to achieve the desired
improvement or when justified by the nature of the offense. The supervisor must give the
written reprimand to the employee personally, and must forward a copy to Human
Resources for placement in the employee’s personnel file. The written notice
must inform the employee of his or her right to appeal the written reprimand
through the complaint procedures in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy and that the employee
should contact Human Resources in regard to any questions about appeals. Access
the written reprimand suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html.
c. Suspension: There are two types of
suspension:
1)
Suspension With Pay for
Investigation: The employee is paid while suspended from regular duties. This
type of suspension is used when a supervisor needs to investigate the
circumstances surrounding an alleged offense more thoroughly and the continued
presence in the work place of the employee alleged to have committed the
offense is detrimental to operations. The suspending official must notify the
employee by memorandum as soon as possible of the suspension with pay,
including the reasons for the suspension and the dates covered by the
suspension. Access the suspension with pay suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html. The suspending official must provide copies of this
memorandum to his or her supervisor and Human Resources. Payroll will record
the employee’s time while on suspension with pay as Administrative Leave.
2) Suspension Without Pay: The university does not pay the employee while suspended
from regular duties.
The
vice president in the suspended employee’s reporting line must approve any disciplinary
suspension in excess of five working days. The university must provide notice
of suspension to the employee with a copy to Human Resources for placement in
the employee’s personnel file. The written notice must inform the employee of his or her
right to appeal the suspension through the complaint and grievance procedures
as appropriate in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy and that the employee
should contact Human Resources in regard to any questions about appeals. Access
the suspension without pay suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html. The department must submit a PCR for the suspension period.
d. Reduction in Pay: The university will reduce the
employee’s pay by a fixed amount each month. The supervisor must give the
employee written notice of the pay reduction and forward a copy to Human
Resources for placement in the employee’s personnel file. The written notice
must inform the employee of his or her right to appeal the reduction in pay
through the complaint and grievance procedures as appropriate in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy and that the employee
should contact Human Resources in regard to any questions about appeals. Access
the reduction in pay suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html. The supervisor must
also initiate a PCR reflecting the reduction in pay and send it through administrative
channels.
The university may reduce an
employee’s pay regardless of the employee’s salary. In disciplinary
actions, the supervisor may reduce an employee’s pay even if it causes the
employee’s salary to go below the pay plan minimum for the title the employee
holds.
e. Demotion: Demotion results in a change
of title for the employee. The new title will have a lower minimum pay rate
than the title previously held. The supervisor must give a written demotion notice to the
employee and forward another copy to Human Resources for placement in the
employee’s personnel file. The written notice must inform the employee of his or
her right to appeal the demotion through the complaint and grievance procedures
as appropriate in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy and that the employee
should contact Human Resources in regard to any questions about appeals. Access
the demotion suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html. The supervisor must
initiate a PCR and send it through administrative channels.
f. Discharge: Only the president, vice
presidents, deans and directors reporting directly to a vice president have
authority to discharge regular employees. The discharging official must consult with Human Resources
before taking any discharge action to assure adequate investigation of the case
for dismissal. The discharging official must sign the dismissal notice which
must specify the effective discharge date and inform the employee of the right
to appeal the discharge through the complaint and grievance procedures in UPPS
No. 04.04.41,
Staff
Employee Mediation, Grievance, and Complaint Policy and to contact Human
Resources regarding any appeal questions. In addition, the discharge letter must
receive approval and signature from Human Resources. Access the discharge
suggested form letter at http://www.hr.txstate.edu/Forms/employerelationforms.html. The discharging
official will forward a copy of the discharge documents to Human Resources for
placement in the employee's personnel file and ensure that a PCR terminating
the employee is prepared and sent through administrative channels.
Note: On occasion a
supervisor and an employee may consider a resignation in lieu of an involuntary
disciplinary discharge. In such instances supervisors and employees should
contact Human Resources for guidance.
06. PROCEDURES FOR IMPOSING DISCIPLINARY
SANCTIONS AND INVOLUNTARY TERMINATIONS
06.01 Orderly
administration of disciplinary sanctions and involuntary terminations enhances
good human resources management. The following procedures will assist
supervisors in their efforts to achieve good management of human resources.
06.02 Disciplinary Sanctions. The supervisor shall:
a. Fairly and thoroughly investigate each case
before imposing any discipline;
b. Consult with his or her supervisor and Human
Resources if considering disciplinary suspension without pay, reduction in pay,
demotion, or discharge;
c. Inform the employee of the exact charge
against him or her before imposing disciplinary sanctions;
d. Give the employee the opportunity to rebut
the case and to present written statements or witnesses in support of his or
her case. The supervisor may impose a timeframe for response;
e. Use and retain the checklist found in http://www.humanresources.txstate.edu/pdf/Attachment%20I%20040440%20110107.pdf;
f. Prepare a disciplinary letter using the
sample disciplinary letters set forth in the UPPS and found at http://www.humanresources.txstate.edu/hrforms.htm#employeerelations. Ensure that the
letter tells the employee:
1) the type of disciplinary sanction and why
(check wording with Human Resources);
2) that further infractions could lead to more
severe discipline, including discharge; and
3) that the employee has the right to appeal the
disciplinary action through the complaint and grievance procedures as
appropriate in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy and that the employee
should contact Human Resources in regard to any questions about appeals.
g. Meet promptly with the employee and give him
or her the letter; and
NOTE: If unusual
circumstances prohibit face-to-face meetings with the employee for steps c.,
d., or g. above, the supervisor shall communicate by certified mail.
h. Maintain complete records to document all
disciplinary actions taken against any employee.
06.03 Non-Disciplinary Terminations. When
terminating an employee for non-disciplinary reasons the
supervisor shall:
a. Fairly and thoroughly investigate each case
before terminating;
b. Consult with his or her supervisor and Human
Resources;
c. Prepare a non-disciplinary termination letter
using a form letter found at http://www.hr.txstate.edu/Forms/employerelationforms.html as a guide. Ensure
that the letter tells the employee:
1) that the employee’s termination is for
non-disciplinary reasons and the reason or reasons for the termination; and
2) that a regular employee has the right to
appeal the termination through the complaint and grievance procedures as
appropriate in UPPS
No. 04.04.41,
Staff Employee Mediation, Grievance, and Complaint Policy and that the employee
should contact Human Resources in regard to any questions about appeals.
d. Receive approval and a concurring signature
from Human Resources on the discharge document;
e. Meet promptly with the employee and give him
or her the letter; and
NOTE: If unusual
circumstances prohibit a face-to-face meeting, the supervisor shall send the
letter to the employee by certified mail.
f. Maintain complete records to document the
non-disciplinary termination.
06.04 At-Will
Terminations. On occasion the university may determine it is in its best
interest to involuntarily terminate an employee at-will. In such instances, the employee will receive written notice
of the termination but under no circumstances will the notice contain the
reason for the termination.
The supervisor should meet promptly with the
employee and give the employee the termination letter. Access the at-will form
template at http://www.hr.txstate.edu/Forms/employerelationforms.html.
Managers are
cautioned there are statutory exceptions to at-will termination. Employees may
not be separated from employment under the following conditions:
a.
Discharge based upon a person’s
race, color, religion, gender, age, national origin, disability, veterans’
status, sexual orientation, or citizenship;
b.
Retaliatory action in response to
engagement in a protected activity;
c.
Bringing suspected wrongdoing to the
attention of government authorities;
d.
Filing claims with federal or state
authorities;
e.
Participating in military duty;
f.
Participating in voting; or
g.
Jury duty.
06.05 Procedural Defects. If an employee appeals a
disciplinary or non-disciplinary termination, a supervisor's failure to follow
the university's procedures for imposing the termination does not, on its own
merit, provide sufficient justification for overturning the termination.
06.06 When sexual harassment or illegal discrimination allegations
are concurrent with possible disciplinary action under this policy, the
university must settle those allegations before taking any action under this
policy’s disciplinary provisions except suspension with pay for investigation as provided in Section 05.03
c. unless
the allegation’s gravity warrants immediate disciplinary action as determined
by the appropriate divisional vice president.
07. PROCEDURES FOR TERMINATING ADMINISTRATIVE
OFFICERS
07.01 Most
of the policies and procedures in previous sections apply to the discipline and
discharge of administrative officers (UPPS No.
04.04.11, University Classification & Compensation Policy defines
administrative officer and the University Pay Plan
lists them). The following sections describe additional conditions pertaining
to terminating administrative officers.
07.02 Section 3.21 of Chapter V of the Regents'
Rules provides that the Board of Regents or president of the university may
remove an administrative officer of the university when, in the judgment of the
Board of Regents or the president, the interest of The Texas State University
System or of the individual university requires removal. An administrative
officer shall not have a right to a hearing in front of the president or the
Board of Regents unless he or she alleges that the decision to terminate
constitutes violation of a right guaranteed by the laws or Constitution of the
State of Texas or of the United States and requests an administrative hearing
to review the allegations. In
such cases, a hearing committee, consisting of three impartial university
officers appointed by the president will afford the administrative officer an
opportunity to present the allegations before the committee. The committee will
hear the allegations under the same procedures as for faculty dismissal for
cause, with the following exceptions:
a. The burden of proof is upon the affected
administrative officer to establish at such hearing that the decision in
question constitutes violation of a right guaranteed by the laws or Constitution
of the State of Texas or of the United States.
b. The president of the university need not
state the reasons for the questioned decision nor offer evidence in support
thereof unless the affected administrative officer presents a prima facie case
in support of such allegations. In such case, the hearing committee shall
determine whether the president has no other reason for his or her decision.
c. The hearing committee will submit written
recommendations, based on the material facts, to the president and to the
affected administrative officer. The administrative officer may appeal to the
president and ultimately to the Board of Regents in accordance with the terms
and procedures specified in Subsections 4.244 and 4.245 of this Chapter.
07.03 Regents’ Rules, Chapter V, Section 3.22
provide that if the administrative officer has university tenure by virtue of a
past faculty position or otherwise, termination will only follow a showing of
good cause during a hearing.
07.04 An Equity and Access Investigating Committee,
constituted as part of a formal complaint filed under UPPS
No. 04.04.42,
Prohibition of Sexual Harassment or UPPS
No. 04.04.46,
Prohibition of Discrimination or Harassment Based on Race, Color, National
Origin, Age, Sex, Religion, Disability, Veterans’ Status, or Sexual
Orientation, must investigate and issue a finding for any claim of
discrimination or sexual harassment brought by an administrative officer before
the administrative officer can initiate the appeal process to the president.
08. REVIEWERS OF THIS UPPS
08.01 Reviewers of this UPPS include the following:
Position Date
Director of Human
Resources April 1 E4Y
Chief Diversity
Officer and Director, April 1 E4Y
Office of Equity and
Access
TSUS Legal Office April 1
E4Y
Chair, Staff Council April 1 E4Y
09. CERTIFICATION STATEMENT
This UPPS has been approved by the following individuals in
their official capacities and represents Texas State policy and procedure from
the date of this document until superseded.
Director of Human
Resources; senior reviewer of this UPPS
Vice President for
Finance and Support Services
President