ASC leaders can stay on the right side of federal and state employment laws if they create clear objectives and policies, document performance reviews, institute performance improvement plans, take appropriate disciplinary actions, and apply policies consistently and according to state and federal rules.

“I’m a big believer in performance improvement plans,” says Joseph T. Ortiz, partner with Best Best & Krieger, LLP, in Riverside, CA. “Do annual reviews, but supplement these with performance improvement plans and evaluations tied to whenever you see a performance issue.”

For example, during an employee’s first 90 days, a performance review should hold the worker accountable, making it possible for the employee to leave during this probationary period if performance is not adequate. ASCs also should make sure supervisors are fulfilling their oversight role by holding legitimate employee reviews and are not just checking the box, Ortiz says.

“One of the biggest problems is a supervisor who dislikes confrontation and doesn’t want to give even constructive criticism, and so the supervisor checks that everything is above expectations without any comments,” Ortiz explains. “This means they’re not doing their job. They need to go through their notes, look at the employee’s history for the year, and explain in writing why the supervisor feels the employee is above expectation or below expectation or struggling with performance.”

According to Ortiz, supervisors should give criticism to hold staff accountable while showing employees that they are worth leadership’s attention through the review process. Ortiz cautions that leaders should be thoughtful about the use of “below standards” and “unsatisfactory” categories, keeping in mind that “meets standards” is not grounds for discipline. On the other hand, Ortiz suggests supervisors avoid giving an “A” to everyone in the class.

Reviews should provide a narrative that states exactly what the concerns are and how the employee measures up, according to Ortiz. He says supervisors should give positive feedback, but look for opportunities to provide constructive criticism to even the best employees. Finally, Ortiz says it is important for leaders to document performance issues, and use these to decide on disciplinary action as necessary.

Part of performance review involves biweekly one-on-one meetings between supervisors and employees. When someone struggles with job performance, the answer is to establish, in writing, a 60- to 90-day performance improvement plan, Ortiz offers.

“The plan should have metrics, saying, ‘Here’s what we are going to do with you,’” he says. “And at the end of the period, do an evaluation of how well the person is working, setting up a paper trail of expectations.”

Ortiz says performance improvement plans could include employee expectations, opportunities for the employee to succeed, criteria for measuring improvement, a firm timeline for improvement, and documentary support for discipline, if needed.

“Performance improvement should be used anytime it would be useful,” Ortiz says. “Anytime a supervisor identifies an area where the employee is struggling, this should be a coaching tool.”

At some time, every ASC will need to discipline a worker for an infraction of policies or rules. One scenario that might require appropriate discipline could include behavior that negatively affects others, violates workplace rules, and/or brings negative attention on the organization’s public image. Other scenarios might include when an employee is not performing duties at a satisfactory level or engaging in off-duty misconduct.

If actions to help an employee improve deficient or negative behavior fail, it might be time for disciplinary action that is based on the organization’s written disciplinary policies and procedures. Discipline can be based on documented incidents of performance-related problems, including incompetency, inefficiency, or misconduct.

“If the employee continues to fail, then it’s important to document the facts that lead to legitimate discipline,” Ortiz says.

In general, the intention behind discipline is to build morale and strengthen the organization, and it should be meted out in proportion to the person’s behavior, typically administered progressively. For example, some progressive discipline steps might include coaching, verbal or written reprimands, suspension, demotion, or discharge. Ortiz stresses that even verbal counseling and reprimands should be documented in a written record.

An exception to this process would be if the employee does something that is serious enough that harsh discipline is immediately necessary. For example, it might be suitable to immediately discharge employees discovered diverting medication or destroying the business’ property, or who are intoxicated on the job. Also, if the employee’s actions result in a serious patient safety failure, then a serious disciplinary response is warranted.

Every action related to performance and discipline must be adequately documented, or the employee might believe the repercussions are unfair, Ortiz says. However an organization decides to define misconduct that can result in discharge, this policy should be clearly communicated to all employees when they are hired, and reinforced in employee handbooks or when problems arise.