E-Newsletter Edition: February 13, 2008

Response Provided By: Lou Reiter

Always note that state law may be more restrictive on police power than the U.S. Constitution.


Can Shift Level counseling be tracked by Internal Affairs and used in an early warning system?



“Shift Level counseling” or as it is more commonly known as a supervisory counseling notice has been a very successful tool for early intervention with employees.  The two main purposes are (1) to put the employee on notice that something s/he is doing is not proper and will get them into trouble if s/he doesn’t correct the problem, and (2) to provide the agency with the first step in progressive discipline if the employee doesn’t correct the problem.

This legal question came from a member of an Illinois police department.  Undoubtedly, this agency has a collective bargaining agreement (CBA) with the negotiating union.  There are several places you would have to look to determine whether this counseling form is considered a form of discipline.  It may be covered in the CBA, agency manual, other written procedure or supervisory training program.  If it is a form of discipline, the employee may have a right to have a union representative present when it is provided to the employee.  Of course, some agencies might not require that the supervisor notify the employee and allow the supervisor to simply place this notice in some location for use in future ratings of the employee.  This lack of direct notice to the employee would not be consistent with reasonable supervisory practices.  Law enforcement should have progressed beyond the “little book” supervisors used to keep.

If the counseling form is discipline, the employee often would have the right to appeal it normally through the grievance system.  This system is a part of most CBAs.

A second part of this question is what provisions are there regarding the length of time the counseling notice remains in effect and what happens to it after that time has passed.  Many of these types of supervisory intervention notices have a lifetime, frequently 6 to 12 months.  If the employee does not engage in any other conduct subject to counseling form, the employee is told that the form would be destroyed and not be used for any evaluation, assignment or discipline.  That means no one should be able to find any record of the counseling form!

Now that takes us to the last aspect of the legal question.  An Early Warning System (EWS), or as they are now known as an Early Identification and Intervention System (EIIS), have been around since the early 1980s.  They gained more popularity in the late 1990s and became a mandated standard by CALEA in 2002.  When used properly, these systems are supervisory alerts and not discipline.  These systems are designed to gather all forms of agency incidents that could pose future adverse consequences for the employee and the agency.  If not prohibited by some agreement or past practice, counseling forms could become part of this form of system and a first step in progressive discipline.

Nearly all early identification systems are designed to create a window of the employee’s performance, but only for a designated length of time.  This window frequently is for a longer period of time than that usually assigned to a counseling notice.  An essential task for any agency is to ensure that after the window of time has passed or when a document is designed to be destroyed there is a system to, in fact, eliminate it from the system.

So what if this system doesn’t work as designed?  Now we’re in a procedural due process arena.  When an employer promises something to an employee, whether in a written format or custom and practice, and doesn’t follow through, it normally can’t use that against the employee in any subsequent adverse employment action.  There are too many arbitration and case decisions to cite just a few that supports this concept.

What can an agency do to eliminate the potential of either knowingly or unknowingly keeping a counseling form that should have been destroyed?  The first is to have a written protocol that mandates a specific person in the agency to audit files once a year and pull any documents that are not authorized.  The second is some form of employee challenge system that employees can use to review their own files and request removal of unauthorized documents when they are found.

In the end, all employers should treat employees in a fair and reasonable manner.

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