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