If the words "alternative discipline" only conjure brief memories of an outlandish HBO series, it's because the federal government does a poor job advocating for alternative punishments for workplace offenses like chronic tardiness, inappropriate behavior, lack of accountability, failure to follow instructions, and misuse of the government purchase card.
According to the United States Merit Systems Protection Board (MSPB), an "independent quasi-judicial agency established to protect merit systems," many federal agencies do not have a formal alternative discipline policy in place. MSPB's newest report released this month, Alternative Discipline: Creative Solutions for Agencies to Effectively Address Employee Misconduct, showed that out of the 46 organizations surveyed, only seven had a formal agency-wide alternative discipline policy in place.
Traditionally, supervisors follow their agency's personnel or employment guidelines for disciplining an employee without looking into the root cause of the employee's behavior. Delving into the "why" of the action is not required or expected, since it rarely factors into the decision to discipline or terminate employment. But some federal agencies, such as the Department of Health and Human Services and the National Institutes of Standards and Technology, have taken steps to implement an alternative discipline policy as a way to change their behavior without penalizing them. The policy also helps reduce the paper jam that comes from traditional discipline such as probations, suspensions and subsequent termination.
Alternative discipline is neither a reprimand nor a suspension, but a contracted agreement between the employee and the employer requiring or mandating that the misconduct not occur again. Sometimes called "last chance agreements" in that it is the employee's last chance to shape up before more serious punishments are sought, they offer federal employees an opportunity to find their way back to what is considered acceptable behavior - the definition of which can be pretty fluid in a federal environment.
Alternative discipline can be instituted before or after traditional discipline methods are used to resolve the misconduct, and it provides managers with another option when dealing with employees who do not comply with agency employment guidelines and requirements.
For example, instead of suspending an employee, an employer may agree to have his insubordinate perform community service equal to the amount of time that they would otherwise be on suspension. This type of resolution is ideal for a manager who faces an employee with an absentee problem due to personal issues. Placing such an employee on suspension would only result in her being absent longer from work, which would simply exacerbate the problem.
Another example comes from a state police officer that was chronically late due to working a second job to supplement his income. His employers thought that suspending him without pay would only cause emotional duress and resentment, so as part of his alternative discipline agreement, he was tasked with enrolling in a financial management course.
For those outside of government, firing or even disciplining a government employee can be a very arduous process that can quickly turn into a legal battle. Such alternative punishments, which may seem a bit light for the crime, grant managers a second set of tools for working within the confines of an extremely bureaucratic system whose rules often favor the employee over the employer.
Alternative discipline "is a great tool for supervisors to consider if they have an employee who is engaging in misconduct," said MSPB Chairman Neil McPhie. "It empowers [management] to work with the misbehaving employee in order to craft a solution that has the greatest potential to change that employee's conduct."
There are various other alternative dispute policy options for misconduct such as public apologies, shortened suspensions, participation in training programs, temporary shifts in work schedules, making financial restitution to the employer, or attending employee assistance programs.
For employees, the most important aspect of the alternative discipline agreement is that no official disciplinary action is documented which could have a deleterious effect on their employment record. That is, so long as they continue to follow the terms of the agreement. If an employee violates the alternative discipline agreement, management normally falls back on its employment guidelines and penalties for handling the misconduct.
The significant part of an alternative discipline policy is the actual contract between the employee and the manager which provides the alternative discipline details. The details are what the employee and manager have agreed to do to address the misconduct so that it does not happen again. And according to the courts, this agreement is viewed as an official contract.
Of note is the fact that these contracts must be entered into mutually by both parties. If an employee feels pressured to sign the agreement, or the employer acts in "bad faith" by not adhering to the alternative discipline contract agreement, then the contract "would not be enforced" by the MSPB or the Federal Circuit if it ever came under review.
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