I, along with my fellow attorneys at Kramer Rayson, are called a good bit about how to address employee misconduct. Often, the client is reluctant to lower the boom, for one reason or another. Not too long ago, my wife brought home an article about a federal program I had not heard about (which is not surprising because very few federal employees have heard about it either).
The federal government, at the encouragement of the Merit Systems Protection Board (the board that reviews various complaints by federal employees), encourages federal agencies to have a "voluntary alternative discipline program." The idea behind it is essentially the carrot or the stick approach. Instead of attempting to "correct" poor employee behavior by progressive disciplinary action, the employer offers the employee alternatives. A last chance agreement is a form of alternative discipline. What the federal government has done is back that idea up to earlier stages of the discipline process.
So, if an employee commits an offense justifying discipline short of termination, an alternative discipline program lets management offer the employee alternative remedies or sanctions. Anyone who has practiced criminal law will recognize the difference. For example, an employee's conduct might otherwise justify a written warning and six months probation or even a week-long suspension without pay. Alternative discipline gives the employee the choice between imposition of the penalty or accepting something else. In this case, the employee could be offered a suspended sentence type of arrangement (holding off on issuing the warning and probationary period as long as the employee stays out of further trouble). In other situations, such as where discipline is contemplated due to interpersonal relation problems (the ones that fall short of physical violence), the alternative discipline that could be offered is attending EAP sessions, anger management classes or even providing xx number of hours of community service. Where the misconduct involves misuse of company resources (e.g., excessive use of computer for personal business) alternative discipline can be to reimburse the government for the time wasted and the cost of the service. Under some models, the exact nature of the alternative discipline is negotiated with the employee.
Alternative discipline is not a substitute for progressive discipline. It is best used as a supplement to existing programs. Sometimes, punitive discipline is necessary (good examples of this are for harassers or workplace violence or where termination is the only real choice (i.e., a last chance agreement would be pointless)). Its use in any bargaining environment will need to be negotiated. A key component of the alternative discipline agreement is that it is a binding contract in which the employee accepts responsibility for the employee's conduct and releases all claims relating to the alternative discipline.
A good article on the program can be found at http://www.govexec.com/dailyfed/1008/101708b1.htm. The DHHS Guide for Implementing an Alternative Discipline Program describes it without using crushing detail, gives examples of alternative discipline, the topics that should be covered in any alternative discipline agreement as well as a form or two. And if you want to read the 59 page MSPB report, it is available here.
I will offer a word or two of caution. Proper documentation is crucial so please consider having an attorney or qualified HR Professional walk you through at least the first several attempts at Alternative Discipline. There are also some subtle issues under the Fair Labor Standards Act that require finesse whenever an employee agrees to repay an employer. Rather than withholding the amount from a paycheck, the employer should structure a repayment as a completely separate transaction from the pay it makes to the employee.
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