Thursday, March 17, 2011

 

Progressive Discipline and the Tenure Clock

In most non-tenure based settings, managers use “progressive discipline” to address many employee issues. Progressive discipline is the practice of establishing a series of steps of escalating seriousness, starting with the minor (a verbal notice) and culminating in the major (termination). In most cases, the stages go something like this: verbal warning, written warning, written reprimand, suspension, termination. The idea is to give the employee ample opportunity to turn problems around. If it works, great. If it doesn't work, and you have to move to termination, at least the employee can't claim that it came out of the blue. And when the inevitable retaliatory lawsuit hits, the employer can show that s/he made a series of good faith efforts to save the employee before finally concluding that the effort was futile.

(To be fair, in extreme cases you can skip steps. If an employee commits a felony, you don't issue a verbal warning.)

That model makes sense when the clock isn't ticking. When someone's employment is at-will, or contractual, or even tenured, the model can apply. But it doesn't work well with the tenure clock.

From the employer's standpoint, there's a basic asymmetry in life tenure. The institution is bound for the life of the employee, but the employee can leave at any time for any reason or no reason. In practice, the best ones are the likeliest to leave, since they're the likeliest to get other offers.

For all the folks who call for 'transparency' in the life tenure process, the basic fact is that life tenure is really a decision about the future, and the future isn't transparent. The fundamental asymmetry means that the employer is forced to roll the dice, based on whatever information has come to the fore during the pre-tenure period. Since there will never be enough information to predict the future with any certainty, hunches necessarily come into play. Those hunches will be partial and flawed, but in the absence of a crystal ball, there's no way around that. In that setting, the best that can be done is to use the pre-tenure period as broadly indicative, even though it may not be.

And that's one way that progressive discipline creates a problem. You're trying to get a pure sample to predict future behavior. Progressive discipline contaminates the sample. It's the difference between seeing how someone drives when no cops are around and seeing how she drives when there's a trooper in the rear view mirror. Even if she obeys the law in the latter case, you've lost the predictive value of the sample. The presence of the trooper distorts the information.

Logistically, there's also the issue of running out the clock. Walking through every step of progressive discipline takes time. Tenure decisions happen on a timeline, and they're up-or-out. There's no such thing as “let's give a couple more years for the dust to settle and see where we stand.” That is simply not an option. The person is either granted lifetime tenure or fired. If that fish-or-cut-bait moment comes in the middle of the series of steps, the employee could plausibly claim that an adverse decision was premature; after all, she was entitled to more steps. But adding time would automatically trigger tenure, which defeats the purpose. By that logic, a marginal tenure candidate could force the decision her way simply by committing the right level of misconduct at the right time, and riding out the clock. It would be absurd.

I'd argue that the issue here isn't so much progressive discipline, which strikes me as generally reasonable in non-extreme cases, but life tenure itself. A single high-stakes, up-or-out decision creates serious distortions, no matter how it goes. It can't not. Sometimes the most reasonable and fair answer is neither ‘up’ nor ‘out,’ but rather ‘we need more time to decide.’ But that’s off the table. So with ‘waiting for the dust to settle’ ruled out, the most important thing is to get the clearest possible read of the person prior to tenure. Offer orientation and mentoring in the first year, but after that, leave them to their own devices for a while. See how they drive without a cop in the rearview. I don’t like it either, but with a short window prior to an irrevocable lifetime decision, it’s what has to be done.

Comments:
Since when is granting tenure "an irrevocable lifetime decision"? In my school district, tenure means faculty members cannot be fired at will, but faculty members can still be dismissed "for cause." The causes are obvious in the stark cases (e.g., felonious acts) but also more modest (namely, consecutive negative performance reviews). It's not impossible to fire tenured faculty, merely difficult.

Sometimes it seems like administrators just throw their arms up in the air and cry, "Oh, what I can do, they're tenured!", instead of rolling up their sleeves and doing the work of documenting nonperformance.
 
I'm with Zeno here. Incompetent employees can still be dismissed—it's just that the process is more involved than an administrator saying "they're incompetent, so they're gone". In two decades of teaching I've only known one administrator who's made the effort, everyone else has just complained at how "impossible" it is.
 
Zeno, whether or not tenure is "irrevocable" or not doesn't challenge DD's thesis: if a department wants long-term employees who do good work without needing constant supervision, than putting them under progressive discipline prior to tenure prevents the department from learning whether they will need constant supervision or not.

DD, my only concern would be that departmental expectations may be more complicated than 1 year of mentoring can convey, especially in difficult-to-quantify areas like teaching, service, and collegiality. In our department we have a formal third-year review that offers the chair an opportunity to discuss expectations (and issue verbal/written warnings) with the professor at a time when the prof has settled in after the chaos of Year 1, but still has time before the tenure decision to show he understands what the department needs from him. I hope your proposal wouldn't prevent reviews like this.
 
It's worth noting that the tenure clock in most cases is somewhere in the range of 6-8 years.... I'd argue that if an institution can't make a decision about an employee in that timespan, then there are bigger problems than tenure that it needs to contend with.

Also, in support of Anonymous 5:49, 3 words about the "lifetime employment" nonsense: Post-tenure review. Sure, no administrator wants to initiate it by giving an honest review of an employee that's not performing adequately, even though those policies are on the books, but that is not the fault of the tenure system.
 
The way I see it, tenure *ought* to be viewed as a commitment by the institution to help the professor perform to the best of their ability. It's saying "we think you are good enough to keep employed"- that should mean, "you are good enough we will ensure we have department heads, deans, and other leaders to help you when you are not performing as well as you could".

I'm sure managing professors is very hard. But wouldn't it be easier if the expectation wasn't that you'd leave people alone unless it was something dire?
 
I suspect DD's problem is that the tenure clock usually runs faster at a CC than at a university. There are two aspects to this, only one of which DD mentions.

If you have a 7 year clock, the person has to produce at a high level for a minimum of 20% of their career. And IF (a deliberately big if) the decision includes teaching as well as research and IF the assignment of duties is realistic, someone who stops doing research and generating grant dollars can pick up extra classes and do a good job there instead.

You also have a 3-year review that doesn't usually entail "progressive discipline" because weak people are sometimes let go right at that point.

If you have a 3 year clock, as we do, you are sampling less than 10% of a projected career. As DD notes, it doesn't make much sense to do hand holding at that point if you want to see what you are going to get after tenure.

My suggestion is to identify the problem for what it is: a short clock without any option to extend the time for decision. I'd suggest taking this dilemma to your union and ask them if they will allow a third decision option of "3 more years" for a final decision on borderline cases. Since your position would be that you will deny tenure for all borderline cases, because of the long term risk to the college, they might be happy to agree as long as the early review (ours is at about 1.5 years) makes it clear who is borderline and why.
 
Yeah, this one is another where the conclusion precedes the conundrum.

Let's say that we replace "tenure" with DD's preferred solution of "5 year rolling contracts." How is this really better? If gross nonperformance hits, you've got five years to wait, and you have to document just as much as if you were trying to let go of someone who is tenured, or else you miss your window and another five years rolls in.

CCPhysicist has it right -- the problem is that the tenure clock is a little short for proper evaluation, and that's a technical issue which can be addressed at the union level. And this assumes that there exists some quantity of folks who were recently tenured that most people involved agree shouldn't have been. Assumption not really in evidence . . .
 
It seems to me that the issue is that the issue is a disconnect between the progressive discipline system for pre- and post-tenure faculty. At every place I've worked, the primary function of the progressive discipline system is that it's the union-agreed process for firing a tenured employee if needed. Its application to pre-tenure employees (who are at-will) is almost an afterthought.

Presumably, someone who was both going through progressive discipline steps and otherwise tenurable would then just continue in the progressive discipline process while becoming tenured, and be fired at the end of that process if appropriate.

This doesn't address the issue of whether or not someone would work well without "the cop in the rearview mirror", but it seems to me that if you have a union-bargained functional progressive discipline process you can worry about it less since you have an "out" later if it turns out that they only work when being watched.
 
"From the employer's standpoint, there's a basic asymmetry in life tenure. The institution is bound for the life of the employee, but the employee can leave at any time for any reason or no reason."

We are all aware that this is precisely the point of tenure, right?
 
Punditus, I was going to snark that the point of tenure is to be sure that the faculty outlast the bounce-in bounce-out admin of the institution ... whicn, on reflection, helped me realize that the point of tenure is that the FACULTY are the institution.

Tenure protects the institution from the vagaries of administrations that have no long-term commitment to the institution.
 
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